Angela Kate Whittenburg Wang v. John Burkhart Whittenburg

Supreme Court of Texas
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No. 25-0350
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Angela Kate Whittenburg Wang, et al.,
Petitioners,

v.

John Burkhart Whittenburg, et al.,
Respondents

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On Petition for Review from the
Court of Appeals for the Seventh District of Texas
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Argued February 12, 2026

JUSTICE BUSBY delivered the opinion of the Court.

Settlement agreements are “highly favored by the law.” Forest
Oil Corp. v. McAllen, 268 S.W.3d 51, 60 (Tex. 2008). This case concerns
the damages available when a party fails to comply with such an
agreement.
Generally, a plaintiff who proves a breach of contract may recover
actual damages that are “the natural, probable, and foreseeable
consequence of the defendant’s conduct.” Mead v. Johnson Grp., 615
S.W.2d 685, 687 (Tex. 1981). Following a bench trial, the court found
that defendants’ breach of the settlement agreement caused plaintiffs to
incur an extra $216,112 in reasonable and necessary attorney’s fees in
separate litigation. But the court declined to award those fees as
damages in this case, and the court of appeals affirmed, concluding that
the American Rule bars the recovery of attorney’s fees as damages for
breach of contract.
We disagree. Our precedent shows that the American Rule does
not bar recovery of attorney’s fees incurred in prior litigation as
breach-of-contract damages so long as the breach was not a basis for the
prior litigation. Because the fees here were incurred in a partition
proceeding that was brought before the breach occurred, we reverse and
render judgment awarding those fees as damages.

BACKGROUND

Roy and Grace Whittenburg created separate trusts for each of
their many grandchildren (the descendants). Each trust holds interests
in a 200,000-acre ranch located in New Mexico and Colorado. For more
than a decade, the descendants have been involved in multiple lawsuits
regarding ownership of the ranch. To resolve several of these suits, the
descendants signed a Partial Settlement Agreement (PSA), in which the
parties agreed to cooperate in negotiating a partition in kind of the
ranch. If the parties could not agree, they “stipulate[d] that the [New
Mexico] Court shall instruct the Commissioners to partition in kind the
deeded lands and the leasehold interests.”
The parties could not reach a partition agreement and found
themselves back in court. The parties then executed the Compromise
Settlement Agreement (CSA) to “resolve ALL of the disputes and

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controversies among them.” The CSA incorporated the PSA by
reference, providing that “further partition proceedings may be filed in
accordance with the Partial Settlement Agreement” if the parties could
not reach an agreement to partition in kind the ranch. The CSA also
provided that “sole venue and jurisdiction for the enforcement of it shall
be in Canyon, Randall County, Texas.”
When the parties could not reach an agreement, one group of
descendants (collectively “Angela Kate”) filed partition proceedings in
New Mexico (the New Mexico litigation) for the court to appoint
commissioners to partition the land as agreed in the PSA. Another
group of descendants (collectively “John Burk”) challenged the partition,
resulting in lengthy litigation. John Burk eventually consented to the
partition, but it has not yet been accomplished, and the New Mexico
litigation remains pending.
Angela Kate later brought this suit against John Burk for
breaching the settlement agreements. She filed the suit in Randall
County, Texas, as required by the CSA’s forum selection clause. Angela
Kate sought to recover damages resulting from John Burk’s attempt to
stop the partition, measured by the additional attorney’s fees she
incurred in the New Mexico litigation. Angela Kate also sought recovery
of attorney’s fees incurred in this suit under Section 38.001(b)(8) of the
Civil Practice and Remedies Code.
Following a bench trial, the court found that the parties had
stipulated to a “Partition in Kind Requirement” allowing the New
Mexico court to “instruct the Commissioners to partition in kind the
deeded lands and the leasehold interests.” (Emphasis omitted.) The

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court found that John Burk “failed to comply with the Partition in Kind
Requirement in the New Mexico Litigation” by “assert[ing] positions
that were totally at odds with the[] obligation to follow through in a
straightforward manner with the stipulation.” The trial court also found
that John Burk’s breach “caused [Angela Kate] to incur $216,112 in
reasonable and necessary attorneys’ fees in the New Mexico Litigation
in excess of the amount . . . [Angela Kate] would have incurred . . . if
[John Burk] had timely complied with the Partition in Kind
Requirement.” And the court found that Angela Kate had incurred
$541,531.83 in reasonable and necessary attorney’s fees in this suit and
will incur up to $170,000 in reasonable and necessary appellate
attorney’s fees.
The trial court nonetheless rendered a take-nothing judgment
against Angela Kate, concluding as a matter of law that “[t]he attorney’s
fees incurred by [Angela Kate] in the New Mexico Litigation do not
constitute damages in this lawsuit.” The court of appeals affirmed,
concluding that attorney’s fees incurred to address the breach of a
settlement agreement are a non-compensable loss. 726 S.W.3d 516,
521-22 (Tex. App.—Amarillo 2025). We granted review.

ANALYSIS

Angela Kate raises two issues in her petition. First, she contends
that she is entitled to recover as actual damages the portion of her
attorney’s fees in the New Mexico litigation incurred because of John
Burk’s breach of the settlement agreements. Second, Angela Kate
argues that she is entitled to recover her attorney’s fees incurred in this

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suit because her claim is for breach of contract. See TEX. CIV. PRAC. &
REM. CODE § 38.001(b)(8).
John Burk responds that the American Rule bars recovery of
attorney’s fees unless authorized by contract or statute. Here, the
settlement agreements do not include a fee-shifting provision, and the
statute does not permit recovery of attorney’s fees unless the plaintiff
also recovers damages.
We first consider whether Angela Kate is entitled to recover part
of her attorney’s fees in the New Mexico litigation as damages for breach
of contract. We then address whether she is entitled to recover her
attorney’s fees in this suit.

I. Damages for breach of a settlement agreement may
include certain attorney’s fees incurred in prior litigation.

Whether a plaintiff can recover attorney’s fees as her only
damages caused by a defendant’s breach of a settlement agreement is a
question of first impression in this Court. We address it in three steps.
First, our precedent defining the damages available for breach of
contract allows recovery of attorney’s fees resulting from the breach of a
settlement agreement. Second, the American Rule does not bar recovery
of attorney’s fees incurred in prior litigation as breach-of-contract
damages if the breach was not a basis for the prior litigation. Third,
applying that standard here, we conclude Angela Kate is entitled to
recover a portion of her attorney’s fees from the New Mexico litigation
as breach-of-contract damages because the fees arose in a prior
proceeding that was not based on John Burk’s breach.

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A. Angela Kate’s additional attorney’s fees incurred in
the New Mexico litigation are actual damages
caused by John Burk’s breach.

Angela Kate sued John Burk for breach of the settlement
agreements. “In an action for breach of contract, actual damages may
be recovered when loss is the natural, probable, and foreseeable
consequence of the defendant’s conduct.” Mead, 615 S.W.2d at 687. A
loss is foreseeable when it “follow[s] predictably from the breach ‘in the
ordinary course of events’” or when it “arise[s] from ‘special
circumstances’ that the party in breach ‘had reason to know.’” Signature
Indus. Servs., LLC v. Int’l Paper Co., 638 S.W.3d 179, 186 (Tex. 2022)
(quoting Basic Cap. Mgmt., Inc. v. Dynex Com., Inc., 348 S.W.3d 894,
902 (Tex. 2011)).
The trial court found that John Burk’s “failure to comply with the
Partition in Kind Requirement in the New Mexico Litigation constituted
a breach of the settlement agreement.” The court also found that John
Burk’s breach “caused [Angela Kate] to incur $216,112 in reasonable
and necessary attorneys’ fees in the New Mexico Litigation.” 1
These excess attorney’s fees are the natural, probable, and
foreseeable consequence of John Burk’s failure to comply with the
settlement agreements. After more than a decade of litigation, the
parties entered into the CSA “to resolve ALL of the disputes and
controversies among them.” The parties stipulated that if they could not
agree on a partition in kind of the land, “the Court shall instruct the
Commissioners to partition in kind the deeded lands and the leasehold

1 These findings have not been challenged on appeal.

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interests.” Additional attorney’s fees are the natural, probable, and
foreseeable result of John Burk’s attempt to stop the agreed-upon
partition proceedings: instead of appointing commissioners and moving
forward with the partition, the parties had to further litigate whether a
partition was appropriate. John Burk’s failure to comply with the
Partition in Kind Requirement could only result in longer litigation and
Angela Kate’s incurring excess attorney’s fees—the very result the PSA
and CSA sought to avoid. 2 Accordingly, those fees constitute damages
for breach of the settlement agreements.

B. The American Rule does not bar recovery of prior
attorney’s fees as breach-of-contract damages when
the breach was not a basis for the prior litigation.

We next consider whether the American Rule bars recovery of
Angela Kate’s damages because they are attorney’s fees. We conclude
that the Rule’s scope, purpose, and application support permitting
recovery of attorney’s fees incurred in prior litigation as damages for
breach of a settlement or similar agreement, such as a release or
covenant not to sue.
Under the American Rule, “attorney’s fees paid to prosecute or
defend a lawsuit cannot be recovered in that suit absent a statute or
contract that allows for their recovery.” Akin, Gump, Strauss, Hauer &
Feld, L.L.P. v. Nat’l Dev. & Rsch. Corp., 299 S.W.3d 106, 120 (Tex. 2009)

2 Attorney’s fees incurred in a prior litigation could constitute direct or

consequential damages, depending on the circumstances. The trial court and
court of appeals characterized the attorney’s fees at issue as consequential
damages, and neither party challenges this characterization. See 726 S.W.3d
at 518.

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(emphasis added). We have explained that cases addressing the Rule
“should not be read so broadly” as to make “attorney’s fees expended in
prior litigation . . . recoverable only when provided for by contract or
agreement between the parties.” Id. (emphasis added). Thus, “[i]f the
underlying suit concerns a claim for attorney’s fees as an element of
damages, . . . then those fees may properly be included in a judge or
jury’s compensatory damages award.” In re Nalle Plastics Fam. Ltd.
P’ship, 406 S.W.3d 168, 175 (Tex. 2013).
This Court has twice said that the American Rule does not always
bar recovery of attorney’s fees incurred in prior litigation as damages.
In Akin Gump, a former client sued its lawyers for legal malpractice,
alleging the lawyers negligently mishandled the trial, resulting in a
verdict against the client including an award of attorney’s fees. 299
S.W.3d at 110-11. We held that the American Rule did not bar recovery
of attorney’s fees incurred in the prior litigation as malpractice damages
because the plaintiff “d[id] not seek to recover attorney’s fees for
prosecuting its malpractice suit” but rather sought “damages measured
by the economic harm it suffered from [the defendant’s] breach of its
duty of care.” Id. at 121.
In Nalle Plastics, a law firm sued its former client Nalle for breach
of contract by failing to pay legal fees. 406 S.W.3d at 169. A jury found
that Nalle breached the agreement and awarded damages and
attorney’s fees to the law firm. Id. To suspend enforcement pending
appeal, Nalle deposited a check with the trial court. Id. The law firm
complained that the judgment had not been superseded because Nalle’s
deposit did not include attorney’s fees, which it argued were

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compensatory damages. Id. We held that attorney’s fees did not
constitute compensatory damages in that case, but we “reject[ed] the
idea that attorney’s fees can never be considered compensatory
damages.” Id. at 174. And as noted above, we gave an example that fits
this case: “If the underlying suit concerns a claim for attorney’s fees as
an element of damages, . . . then those fees may properly be included in
a judge or jury’s compensatory damages award.” Id. at 175.
The American Rule’s purpose of promoting meritorious litigation
further supports the conclusion that attorney’s fees incurred in a prior
suit can be recoverable damages for breach of a settlement agreement.
A primary justification for the American Rule is that parties “might be
unjustly discouraged from instituting actions to vindicate their rights if
the penalty for losing included the fees of their opponents’ counsel.”
Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718
(1967). If the American Rule barred Angela Kate’s recovery of the
additional attorney’s fees incurred in the New Mexico litigation as a
result of John Burk’s breach of the settlement agreement, Angela Kate
would be unable to bring her meritorious breach-of-contract claim and
would be left without a remedy.
Permitting recovery of attorney’s fees as damages for breaching a
settlement agreement also aligns with this Court’s longstanding policy
favoring settlement agreements. See Forest Oil, 268 S.W.3d at 60;
Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 280 (Tex. 1995)
(“Settlements are favored because they avoid the uncertainties
regarding the outcome of litigation, and the often exorbitant amounts of
time and money to prosecute or defend claims at trial.”). Often, the only

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damages resulting from a breach of a settlement agreement are the
expenses of further litigation. Parties will be less inclined to settle their
claims if they cannot recover their damages in the event of a breach.
But we agree with the Supreme Court of the United States that
“where an action based on the same wrongful act has been prosecuted by
the plaintiff against the defendant to a successful issue, he can not in a
subsequent action recover, as damages, his costs and expenses in the
former action.” Summit Valley Indus., Inc. v. Loc. 112, United Bhd. of
Carpenters & Joiners of Am., 456 U.S. 717, 726 (1982) (emphasis added)
(quoting Ritter v. Ritter, 46 N.E.2d 41, 44 (Ill. 1943)). This Court has
adopted a similar “single-action rule,” under which “a defendant’s
wrongful conduct gives rise to a single, indivisible action in which the
claimant must pursue all claims for all damages resulting from all
injuries that arise from the wrongful conduct.” Regency Field Servs.,
LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 815 (Tex. 2021)
(emphasis added). We therefore hold that the American Rule does not
bar recovery of attorney’s fees incurred in prior litigation as damages for
the breach of a settlement agreement so long as that breach was not a
basis for the prior litigation.
This narrow holding is material only to claims for breach of a
settlement or similar agreement, such as a release or covenant not to
sue. A plaintiff can already obtain attorney’s fees for prevailing on a
claim for breach of contract and recovering damages. TEX. CIV. PRAC. &
REM. CODE § 38.001(b)(8); MBM Fin. Corp. v. Woodlands Operating Co.,
292 S.W.3d 660, 666 (Tex. 2009). Settlement agreements, releases, and
covenants not to sue are unique in that their goal is often to end

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litigation. Therefore, unlike most contracts, a breach of one of these
agreements often results in damages only in the form of attorney’s fees.
We see no indication that the American Rule was intended to bar
recovery of damages for breach of a settlement agreement just because
the damages happen to be attorney’s fees incurred in separate litigation.

C. John Burk’s breach was not a basis for the New
Mexico litigation.

Having held that attorney’s fees incurred in prior litigation can
be recoverable as breach-of-contract damages when that litigation is
based on a different wrongful act, we must now determine whether John
Burk’s breach was a basis for Angela Kate’s partition action in the New
Mexico litigation. We conclude that it was not.
These parties were involved in prior partition suits in New Mexico
and Colorado, which led to the execution of the PSA in 2010. After they
failed to reach a partition agreement under the PSA, they became
embroiled in five separate suits in Texas. Those suits ended with the
execution of the CSA in 2013. Again, the parties failed to agree on a
partition.
Angela Kate then initiated the New Mexico litigation against
John Burk in 2021, asking the court to appoint commissioners to
partition the ranch in accordance with the parties’ agreements. The
predominant dispute at issue in the New Mexico litigation was how to
apportion ownership of the ranch.
In this Texas suit filed in 2022, however, Angela Kate complained
of a new wrongful act: John Burk’s breach of the PSA and CSA during
the course of the New Mexico litigation. Angela Kate did not ask the

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Texas trial court to partition the ranch or assess her ownership of the
ranch. Instead, she alleged that John Burk challenged partition
proceedings despite having contractually bargained away his right to do
so. John Burk’s breach was not a basis for the New Mexico litigation
because the wrongful act—his attempt to stop the partition—did not
occur until after the New Mexico litigation had already begun.
Ordinarily, plaintiffs should bring new claims related to pending
ones in the same jurisdiction where the trial court is already familiar
with the parties and issues. Indeed, we have “repeatedly prohibited”
forum shopping as against public policy. In re Team Rocket, L.P., 256
S.W.3d 257, 260 (Tex. 2008); Reliant Energy, Inc. v. Gonzalez, 102
S.W.3d 868, 875 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 159 S.W.3d
615 (Tex. 2005). But no gamesmanship appears in this case. Angela
Kate could not bring this breach-of-contract suit in New Mexico—where
the litigation in which the breach occurred is still pending—because she
was contractually obligated under the CSA to bring it in Randall
County, Texas. 3
The Texas trial court concluded that John Burk breached his
contractual obligations when he challenged the partition proceedings.
Angela Kate is therefore entitled to recover as damages the portion of
her attorney’s fees from the New Mexico litigation incurred because of
John Burk’s breach of the settlement agreements.

3 Angela Kate has requested recovery of attorney’s fees from the court

in the New Mexico litigation on equitable grounds. She concedes this is an
alternative theory and that she is not entitled to a double recovery of any fees
awarded as damages in this suit.

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We emphasize that Angela Kate cannot recover all the attorney’s
fees she incurred in the New Mexico litigation; she can recover only
those fees directly attributable to John Burk’s breach by opposing the
partition. The trial court found that Angela Kate incurred $216,112 in
“reasonable and necessary attorneys’ fees in the New Mexico Litigation
in excess of the amount of reasonable and necessary attorneys’ fees that
[she] would have incurred in the New Mexico Litigation if [John Burk]
had timely complied with the Partition in Kind Requirement.”
(Emphases added.) Angela Kate can recover only these excess fees as
actual damages for breach.
We note that both sides have expended hundreds of thousands of
dollars over four years litigating whether Angela Kate can recover the
attorney’s fees from the New Mexico litigation as damages. Such
additional cost, time, and uncertainty can be avoided by specifying in
settlement agreements whether fee shifting is available.

II. Angela Kate is also entitled to attorney’s fees incurred in
this suit.

A prevailing party may recover reasonable attorney’s fees, “in
addition to the amount of a valid claim and costs, if the claim is for . . .
an oral or written contract.” TEX. CIV. PRAC. & REM. CODE § 38.001(b)(8).
To obtain fees under this statute, a litigant must “(1) prevail on a breach
of contract claim, and (2) recover damages.” MBM Fin. Corp., 292
S.W.3d at 666.
Angela Kate prevailed on her claim for breach of contract as the
trial court found that John Burk breached the settlement agreements.
And we have just concluded that Angela Kate is entitled to actual

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damages resulting from John Burk’s breach, which the trial court found
to be $216,112. Angela Kate is therefore entitled to her reasonable and
necessary attorney’s fees incurred in this suit.
The trial court found that Angela Kate incurred $541,531.83 in
reasonable and necessary attorney’s fees in litigating this suit to a final
judgment. The trial court also found that up to $170,000 would be her
reasonable appellate attorney’s fees in the event of success at various
levels of appeal. This results in a sum of up to $711,531.83 in attorney’s
fees for the present litigation.
We decline to render judgment for this amount, however. The
trial court awarded Angela Kate $0 in actual damages for John Burk’s
breach of contract. We have now changed the results obtained to
$216,112. John Burk had no reason to challenge the sufficiency of the
evidence to support the reasonableness of a $711,531.83 fee award to
recover $216,112 in damages because the trial court had rendered a
take-nothing judgment and he prevailed in the court of appeals. We
conclude he is entitled to an opportunity to do so.
When the “absolute value of the difference between the erroneous
and correct amounts of damages” is significant, we cannot say with
reasonable certainty that the finder of fact “was not significantly
affected by the error” in determining a reasonable fee award. Barker v.
Eckman, 213 S.W.3d 306, 314 (Tex. 2006). Even when a party
introduces uncontradicted evidence of a reasonable hourly rate and the
number of attorney hours necessary to achieve the results it is seeking
at trial, the opposing party is entitled to challenge this evidence as
insufficient to support a base lodestar fee award when there is a

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significant change in the results actually obtained from the jury, trial
court, or appellate court. Id. at 313-15; see Rohrmoos Venture v. UTSW
DVA Healthcare, LLP, 578 S.W.3d 469, 500 n.12 (Tex. 2019) (explaining
that when results obtained vary from those assumed in the base lodestar
calculation, the “fact finder may determine whether the results obtained
consideration necessitates an adjustment [to the base lodestar] to
achieve a reasonable fee”); Smith v. Patrick W.Y. Tam Tr., 296 S.W.3d
545, 547-48 (Tex. 2009) (remanding for new trial on attorney’s fees after
significant change in results obtained despite “uncontradicted
testimony” supporting fees). Indeed, we have identified “the degree of
success obtained” as “the most critical factor in determining
reasonableness of a fee award.” Farmers Grp. v. Geter, 620 S.W.3d 702,
713 (Tex. 2021) (quoting Smith, 296 S.W.3d at 548). Accordingly, the
trial court in this case (as trier of fact) should have an opportunity to
reconsider the amount of reasonable and necessary attorney’s fees in
this suit in the first instance in light of the correct results obtained.
Barker, 213 S.W.3d at 315.

CONCLUSION

We reverse the court of appeals’ judgment and render judgment
based on the trial court’s findings that Angela Kate is entitled to recover
$216,112 in actual damages for John Burk’s breach of contract. We
remand the case to the trial court for further proceedings to form a

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complete judgment, including reconsideration of an award of reasonable
and necessary attorney’s fees in this suit.

J. Brett Busby
Justice

OPINION DELIVERED: May 15, 2026

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