Opinion issued March 6, 2008
In=20
The
This is an=20
appeal from the trial court's September 1, 2006 judgment denying =
the=20
petition for a bill of review filed by appellants National =
Football League=20
Players Association and National Football League Players =
Incorporated.=20
See generally Caldwell v. Barnes, 154 S.W.3d 93, =
96=20
(Tex. 2004) (elements of bill of review). The bill of review was =
filed to=20
set aside a default judgment in which appellee Blake's Bar-B-Q, =
Inc.=20
recovered $50,000 for breach of contract and $20,000 in attorney's =
fees=20
from National Football League Players Incorporated. See=20
Blake's Bar-B-Q, Inc. v. Nat'l Football League Players =
Inc., No.=20
815,310 (County Civ. Ct. at Law No. 4, Harris County, Tex. June =
15,=20
2004). The=20
underlying dispute arose out of a business deal the Houston =
chapter of the=20
National Football League Players Association made with Blake's =
Bar-B-Q in=20
connection with the 2004 Super Bowl. Blake's signed an agreement =
with=20
"National Football League Players Association, Inc." in which it =
would be=20
authorized to cater "officially sanctioned" Super Bowl events. The =
contract called for Blake's to be paid $30,000 from the first =
$100,000 in=20
gross receipts, $10,000 from gross receipts from $100,001 to =
$200,000, and=20
$10,000 from gross receipts in excess of $200,000. The maximum =
amount due=20
Blake's, exclusive of catering, was $50,000. Blake's was never =
paid, and=20
it sued and obtained a default judgment for $50,000 in damages =
from=20
National Football League Players Incorporated. After both=20
National Football League Players Association and National Football =
League=20
Players Incorporated filed their bill of review, Blake's =
counterclaimed in=20
that proceeding against National Football League Players =
Association for=20
breach of contract, fraud, and conversion. The September 1, 2006 =
judgment=20
(1) dismissed with prejudice National Football League Players=20
Incorporated, (2) denied all relief requested by National Football =
League=20
Players Association, and (3) granted summary judgment on Blake's =
Bar-B-Q,=20
Inc.'s motion that Blake's recover $50,000 for contract damages =
and=20
$37,500 in attorney's fees from National Football League Players=20
Association. The record contains no order granting the bill of =
review and=20
setting aside the June 15, 2004 default judgment, and the final =
judgment=20
affirmatively dismissed with prejudice National Football League =
Players=20
Incorporated and denied all relief requested by National Football =
League=20
Players Association. The effect=20
of the final judgment is that all relief requested in the bill of =
review=20
was denied. The trial court rendered a summary judgment based on =
Blake's=20
counterclaim against National Football League Players Association. =
National Football League Players Association and National Football =
League=20
Players Incorporated did not object in the trial court to denial =
of their=20
bill of review, but instead filed a motion for reconsideration =
challenging=20
the award of the counterclaim on the grounds that it was an =
impermissible=20
double recovery and the evidence was legally and factually =
insufficient to=20
support the summary judgment. As these are the only complaints =
preserved=20
for appellate review, we will restrict our consideration of =
appellants'=20
issues accordingly. See Tex. R. App. P. 33.1(a) =
(discussing=20
preservation of error). In issue 2,=20
National Football League Players Association contends in part that =
the=20
trial court erred in rendering a Rule 166a(c) summary judgment =
against it=20
because Blake's did not establish the amount of damages by =
providing=20
evidence of the amount of gross receipts. See Tex. R. =
Civ. P.=20
166a(c). In issue 3, National Football League Players Association =
contends=20
in part that the trial court erred in awarding attorney's fees =
because the=20
award of actual damages was erroneous. Blake's does not directly =
respond=20
to these arguments, but instead contends this Court should treat =
the=20
summary-judgment award against National Football League Players=20
Association as either a sanctions award or a judgment nunc pro=20
tunc. It is=20
axiomatic that the summary-judgment movant bears the burden of=20
establishing there is no genuine issue as to any material fact and =
that=20
movant is entitled to judgment as a matter of law. Tex. R. Civ. P. =
166a(c). Here, the summary-judgment evidence does not demonstrate =
the=20
amount of gross receipts, so Blake's summary-judgment damage award =
of=20
$50,000 cannot stand. Further, the award of attorney's fees cannot =
be=20
upheld because Blake's cannot recover damages. See =
Green=20
Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). =
Accordingly,=20
we sustain issues 2 and 3 in part, and overrule as moot the =
remaining=20
portions in those issues. We=20
interpret Blake's argument that this Court should treat the=20
summary-judgment award against National Football League Players=20
Association as either a sanctions award or a judgment nunc pro =
tunc as a=20
cross-point. Blake's, however, does not point to anything in the =
record=20
that suggests it ever asked the trial court to impose sanctions or =
to=20
render a judgment nunc pro tunc. Blake's clearly pleaded a =
counterclaim=20
against National Football League Players Association for breach of =
contract, fraud, and conversion. We decline to allow Blake's to=20
recharacterize the summary-judgment award for the first time on =
appeal.=20
Blake's cross-point is overruled. Because we=20
have sustained National Football League Players Association's =
challenge to=20
the $50,000 damage award and attorney's fees, all remaining issues =
regarding the summary judgment against National Football League =
Players=20
Association are moot. We overrule Blake's issues attacking the =
2004=20
default judgment against National Football League Players =
Incorporated=20
because those issues were not preserved for appellate review. =
Accordingly,=20
(1) we affirm the portion of the September 1, 2006 judgment that =
(a)=20
dismissed with prejudice National Football League Players =
Incorporated and=20
(b) denied all relief requested by National Football League =
Players=20
Association, (2) we reverse the portion of the September 1, 2006 =
judgment=20
that rendered summary judgment for Blake's, and (3) we remand the =
case to=20
the trial court for further proceedings limited to Blake's =
counterclaims=20
against National Football League Players =
Association. Sam=20
Nuchia Panel=20
consists of Justices Nuchia, Hanks, and=20
Higley.