Opinion
No. 10-03-00047-CV
Opinion delivered and filed: March 23, 2005.
Appeal from the 11th District Court, Harris County, Texas, Trial Court # 00-10246.
Affirmed in part, reversed and rendered in part.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
The Williamsons appeal the trial court's judgment awarding attorney's fees to Re/Max Fry Road Realtors, Dale Climer, and Denise Villatoro ("Re/Max"). Finding that the trial court erred in awarding attorney's fees, we will reverse the award.
BACKGROUND
The Williamsons contracted with Re/Max to represent them in a home purchase. The Williamsons entered into an earnest money contract offering to purchase a home owned by the Guynes. The Williamsons sued the Guynes, Re/Max, Coldwell Bankers, and other realtors. The case was tried before a jury, which found for the defendants. Re/Max filed a motion for attorney's fees. The trial court granted the motion and awarded $32,781 in attorney's fees.
Attorney's fees are not recoverable unless provided for by statute or contract between the parties. Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996). Re/Max argues that they are entitled to recover attorney's fees based upon a provision in the earnest money contract that states: "The prevailing party in any legal proceeding brought under or with respect to the transaction described in this contract is entitled to recover from the non-prevailing party all costs of such proceeding and reasonable attorney's fees." The Williamsons argue that the contract defines "parties" as the buyer (the Williamsons) and the seller (the Guynes). Re/Max was not listed as a party to the contract and did not sign the contract.
The issue is thus whether the term "party" in the attorney's fees provision is limited to the parties identified and defined by the contract or whether the term includes persons who were not parties to the contract but who were parties in the legal proceeding. The only parties identified in the contract are the buyers and the sellers. In determining intent, we presume that the parties contracted only for themselves and not for the benefit of third parties, unless the obligation to the third party is clearly and fully spelled out. Corpus Christi Bank Trust v. Smith, 525 S.W.2d 501, 503-4 (Tex. 1975). We find nothing in the contract to suggest that the parties included the attorney's fees provision for the benefit of persons other than the parties to the contract. There is nothing in the contract suggesting the buyer and seller intended the word "party" in the attorney's fees provision to include non-parties to the contract. The provision is intended to create a mutual obligation: whichever party loses pays the other party's attorney's fees. There is no evidence that the buyer and seller intended to also unilaterally obligate themselves to pay attorney's fees to persons who, because they were not parties to the contract, would not themselves be obligated under the provision. Absent evidence of such intent, the term "party" should be defined by the terms of the contract itself, which identifies only the buyer and seller as parties. Thus we hold that Re/Max was not entitled to recover attorney's fees under the earnest money contract. We sustain the issue.
CONCLUSION
We reverse the trial court's judgment in part. We reverse the award of attorney's fees to Re/Max and render judgment that Re/Max recover no attorney's fees. The remainder of the judgment is affirmed. Costs of the appeal are assessed against Re/Max.