Opinion issued March 6, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-01106-CV

NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION AND NATIONAL FOOTBALL LEAGUE PLAYERS INCORPORATED, Appellants

V.

BLAKE'S BAR-B-Q, INC., Appellee

On Appeal from County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 823,708

MEMORANDUM OPINION

This is an appeal from the trial court's September 1, 2006 judgment denying the petition for a bill of review filed by appellants National Football League Players Association and National Football League Players Incorporated. See generally Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (elements of bill of review). The bill of review was filed to set aside a default judgment in which appellee Blake's Bar-B-Q, Inc. recovered $50,000 for breach of contract and $20,000 in attorney's fees from National Football League Players Incorporated. See Blake's Bar-B-Q, Inc. v. Nat'l Football League Players Inc., No. 815,310 (County Civ. Ct. at Law No. 4, Harris County, Tex. June 15, 2004).

The underlying dispute arose out of a business deal the Houston chapter of the National Football League Players Association made with Blake's Bar-B-Q in connection with the 2004 Super Bowl. Blake's signed an agreement with "National Football League Players Association, Inc." in which it would be 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 gross receipts, $10,000 from gross receipts from $100,001 to $200,000, and $10,000 from gross receipts in excess of $200,000. The maximum amount due Blake's, exclusive of catering, was $50,000. Blake's was never paid, and it sued and obtained a default judgment for $50,000 in damages from National Football League Players Incorporated.

After both National Football League Players Association and National Football League Players Incorporated filed their bill of review, Blake's counterclaimed in that proceeding against National Football League Players Association for breach of contract, fraud, and conversion. The September 1, 2006 judgment (1) dismissed with prejudice National Football League Players Incorporated, (2) denied all relief requested by National Football League Players Association, and (3) granted summary judgment on Blake's Bar-B-Q, Inc.'s motion that Blake's recover $50,000 for contract damages and $37,500 in attorney's fees from National Football League Players Association. The record contains no order granting the bill of review and setting aside the June 15, 2004 default judgment, and the final judgment affirmatively dismissed with prejudice National Football League Players Incorporated and denied all relief requested by National Football League Players Association.

The effect of the final judgment is that all relief requested in the bill of review was denied. The trial court rendered a summary judgment based on Blake's counterclaim against National Football League Players Association. National Football League Players Association and National Football League Players Incorporated did not object in the trial court to denial of their bill of review, but instead filed a motion for reconsideration challenging the award of the counterclaim on the grounds that it was an impermissible double recovery and the evidence was legally and factually insufficient to support the summary judgment. As these are the only complaints preserved for appellate review, we will restrict our consideration of appellants' issues accordingly. See Tex. R. App. P. 33.1(a) (discussing preservation of error).

In issue 2, National Football League Players Association contends in part that the trial court erred in rendering a Rule 166a(c) summary judgment against it because Blake's did not establish the amount of damages by providing evidence of the amount of gross receipts. See Tex. R. Civ. P. 166a(c). In issue 3, National Football League Players Association contends in part that the trial court erred in awarding attorney's fees because the award of actual damages was erroneous. Blake's does not directly respond to these arguments, but instead contends this Court should treat the summary-judgment award against National Football League Players Association as either a sanctions award or a judgment nunc pro tunc.

It is axiomatic that the summary-judgment movant bears the burden of establishing there is no genuine issue as to any material fact and that 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 amount of gross receipts, so Blake's summary-judgment damage award of $50,000 cannot stand. Further, the award of attorney's fees cannot be upheld because Blake's cannot recover damages. See Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Accordingly, we sustain issues 2 and 3 in part, and overrule as moot the remaining portions in those issues.

We interpret Blake's argument that this Court should treat the summary-judgment award against National Football League Players Association as either a sanctions award or a judgment nunc pro tunc as a cross-point. Blake's, however, does not point to anything in the record that suggests it ever asked the trial court to impose sanctions or to render a judgment nunc pro tunc. Blake's clearly pleaded a counterclaim against National Football League Players Association for breach of contract, fraud, and conversion. We decline to allow Blake's to recharacterize the summary-judgment award for the first time on appeal. Blake's cross-point is overruled.

Because we have sustained National Football League Players Association's challenge to the $50,000 damage award and attorney's fees, all remaining issues regarding the summary judgment against National Football League Players Association are moot. We overrule Blake's issues attacking the 2004 default judgment against National Football League Players Incorporated because those issues were not preserved for appellate review. Accordingly, (1) we affirm the portion of the September 1, 2006 judgment that (a) dismissed with prejudice National Football League Players Incorporated and (b) denied all relief requested by National Football League Players Association, (2) we reverse the portion of the September 1, 2006 judgment that rendered summary judgment for Blake's, and (3) we remand the case to the trial court for further proceedings limited to Blake's counterclaims against National Football League Players Association.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Hanks, and Higley.