Chapter 31 

Attorney’s Fees

§ 31.1Authorities for Award of Attorney’s Fees

The general rule regarding attorney’s fees is that, absent a contractual or statutory provision to the contrary, each party bears the cost of its own attorney’s fees. Harrison v. Gemdrill Inter­national, Inc., 981 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). This rule is called the “American Rule,” in con­trast to the practice in England, where the loser pays the prevailing party’s attorney’s fees. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006).

There are two exceptions to the American Rule. The first is when an award of attorney’s fees is allowed by statute or in equity. Statutes that allow for recovery of attorney’s fees include the following:

1.Tex. Civ. Prac. & Rem. Code ch. 38—recovery of attorney’s fees

2.Tex. Civ. Prac. & Rem. Code § 37.009—declaratory judgments

3.Tex. Bus. & Com. Code § 27.01(e)—statutory fraud

4.Tex. Civ. Prac. & Rem. Code § 31.002(e)—turnover

5.Tex. Bus. & Com. Code § 17.50(c), (d)—the Deceptive Trade Practices–Consumer Protection Act (DTPA)

6.Tex. Fin. Code § 392.403—the Texas Debt Collection Act

7.Tex. Bus. & Com. Code §§ 9.607(d), 9.608—nonjudicial foreclosure of a security interest in personal property

In total, there are more than two hundred statu­tory exceptions that allow attorney’s fees awards to a prevailing party.

Attorney’s fees may also be recovered “in equity,” that is, in certain cases in which there is no statute or contract providing for attorney’s fees. Nationwide Mutual Insurance Co. v. Holmes, 842 S.W.2d 335, 341 (Tex. App.—San Antonio 1992, writ denied). The two equitable grounds for recovery are (1) the common-fund doctrine found in Knebel v. Capital National Bank, 518 S.W.2d 795, 798–99 (Tex. 1974) (distributing burden of expenses among those who share in an accomplished benefit); and (2) attorney’s fees as damages, found in Lesikar v. Rappeport, 33 S.W.3d 282, 306 (Tex. App.—Texarkana 2000, pet. denied) (attorney’s fees available under equity when defendant’s wrong­ful acts made necessary prior litigation with third party).

The second exception allowing for recovery of attorney’s fees is when a contract provides for recovery by a prevailing party. Such provisions are commonly found in promissory notes as well as in invoices and other contracts. To prevail means to “obtain actual and meaningful relief, something that materially alters the parties’ legal relationship.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 485–86 (Tex. 2019). Where there is a prevailing-party contract clause, a party defending a claim may obtain relief for attorney’s fees for successfully defending against a claim and securing a take-nothing judgment. The party does not necessar­ily need to obtain monetary relief to be a pre­vailing party. See Rohrmoos Venture, 578 S.W.3d at 486. While no monetary relief is required to be a prevailing party under a contract with a prevailing-party clause, the law is differ­ent with regard to Texas Civil Practice and Remedies Code chapter 38, which requires that money damages be awarded to support a claim for attorney’s fees. Rohrmoos Venture, 578 S.W.3d at 484. See section 31.2:3 below.

§ 31.2Texas Civil Practice and Remedies Code Section 38.001

§ 31.2:1Permitted Claims under Section 38.001

An often-used statutory basis for recovery of attorney’s fees is Tex. Civ. Prac. & Rem. Code § 38.001, which specifically allows for recovery of attorney’s fees for the following claims:

1.rendered services;

2.performed labor;

3.furnished materials;

4.freight or express overcharges;

5.lost or damaged freight or express;

6.killed or injured stock;

7.sworn accounts; and

8.oral or written contracts.

See section 31.11 below for information about judicial notice of attorney’s fees in Code chapter 38 claims.

§ 31.2:2Claims Not Permitted

Certain claims for attorney’s fees do not fall within the purview of Tex. Civ. Prac. & Rem. Code ch. 38, and thus cannot serve as a basis for recovering attorney’s fees.

Recovery is not allowed for a defendant who successfully defeats a plaintiff’s claim, because “[c]hapter 38 does not provide for the recovery of attorney’s fees by a defendant who only defends against a plaintiff’s contract claim and presents no contract claim of its own.” Energen Resources Maq v. Dalbosco, 23 S.W.3d 551, 558 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).

Recovery is not allowed in a suit to rescind a contract. See American Apparel Products v. Brabs, 880 S.W.2d 267, 270 (Tex. App.—Hous­ton [14th Dist.] 1994, no writ).

Finally, chapter 38 applies to recovery of attor­ney’s fees only from individuals and corpora­tions. It does not provide for recovery from limited liability companies, partnerships, or lim­ited partnerships. First Cash, Ltd. v. JQ-Park­dale, LLC, 538 S.W.3d 189, 194 (Tex. App.—Corpus Christi–Edinburg 2018, no pet.) (citing Alta Mesa Holdings, LP v. Ives, 488 S.W.3d 438, 453–55 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)).

§ 31.2:3Requirements for Seeking Attorney’s Fees under Section 38.001

To recover attorney’s fees under Tex. Civ. Prac. & Rem. Code § 38.001, three statutory require­ments must be met:

1.the claimant must be represented by an attorney;

2.the claimant must present the claim to the opposing party or to a duly autho­rized agent of the opposing party; and

3.payment for the just amount owed must not have been tendered before the expiration of the thirtieth day after the claim is presented.

Tex. Civ. Prac. & Rem. Code § 38.002; Harri­son v. Gemdrill International, Inc., 981 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); Panizo v. Young Men’s Christian Ass’n, 938 S.W.2d 163, 168 (Tex. App.—Hous­ton [1st Dist.] 1996, no writ).

In addition, any award of attorney’s fees under chapter 38 requires recovery of monetary dam­ages. Rohrmoos Venture v. UTSW DVA Health­care, LLP, 578 S.W.3d 469, 484 (Tex. 2019) (citing Green International, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997)).

§ 31.2:4Presentment of Claim

Recovery of attorney’s fees under chapter 38 requires that the claim be presented to the opposing party. Tex. Civ. Prac. & Rem. Code § 38.002(2). Oral presentment is acceptable, and the demand need not be sent by an attorney. No particular form of presentment is required. See France v. American Indemnity Co., 648 S.W.2d 283, 285–86 (Tex. 1983) (sending invoices as well as making telephone call sufficient to prove presentment); Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981). An invoice to the debtor before referral to the attorney constitutes presentment. See Adams v. Petrade International, Inc., 754 S.W.2d 696, 719 (Tex. App.—Houston [1st Dist.] 1988, writ denied) (sending invoice suffi­cient); Gensco, Inc. v. Transformaciones Metal­urgicias Especiales, S.A., 666 S.W.2d 549, 554 (Tex. App.—Houston [14th Dist.] 1984, writ dism’d) (sending invoice sufficient). Whatever form it takes, the demand should disclose what is claimed to be owed with reasonable accuracy. See Lewis v. Deaf Smith Electric Cooperative, Inc., 768 S.W.2d 511, 513 (Tex. App.—Ama­rillo 1989, no writ); Seureau v. Mudd, 515 S.W.2d 746, 749 (Tex. App.—Houston [14th Dist.] 1974, writ ref’d n.r.e.); W.G. Tufts & Son v. Herider Farms, Inc., 485 S.W.2d 300, 303–04 (Tex. App.—Tyler 1972, writ ref’d n.r.e.). Fur­thermore, the presentment can be made after suit is filed as long as the three requirements of sec­tion 38.002 are met. Texas courts have long held that “[p]resentment may be made either before or after filing suit, provided it is made at least thirty days before judgment, and no particular form of presentment is required.” McDowell v. Bier, No. 2-09-231-CV, 2010 WL 1427244, at *6 (Tex. App.—Fort Worth Apr. 8, 2010, no pet.) (mem. op.) (citing Harrison v. Gemdrill International, Inc., 981 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); Sterling Construction Co. v. West Texas Equip­ment Co., 597 S.W.2d 515, 518 (Tex. App.—Amarillo 1980, no writ)).

The filing of a lawsuit by itself does not suffice as a means of presentment of the claim. Huff v. Fidelity Union Life Insurance Co., 312 S.W.2d 493, 500 (Tex. 1958); Jim Howe Homes, Inc. v. Rogers, 818 S.W.2d 901, 904 (Tex. App.—Aus­tin 1991, no writ). A defendant’s offer to settle does not defeat a creditor’s right to attorney’s fees. Commercial Union Insurance Co. v. La Villa Independent School District, 779 S.W.2d 102, 107 (Tex. App.—Corpus Christi–Edinburg 1989, no writ).

§ 31.2:5Excessive Demands

Practitioners should be aware that presenting excessive demands can create problems. Gener­ally, “[a] creditor who makes an excessive demand upon a debtor is not entitled to attor­ney’s fees for subsequent litigation required to recover the debt.” Findlay v. Cave, 611 S.W.2d 57, 58 (Tex. 1981); Panizo v. Young Men’s Christian Ass’n, 938 S.W.2d 163, 169 (Tex. App.—Houston [1st Dist.] 1996, no writ). How­ever, Texas courts have held that a demand is not excessive simply because it is greater than the amount later determined to be due by the fact finder. The test for excessiveness is not purely mathematical. For example, in Panizo a demand for $125,000 was not found to be exces­sive even though the jury awarded only $1,000. According to the Panizo court, the “dispositive inquiry for determining whether a demand is excessive is whether the claimant acted unrea­sonably or in bad faith.” Panizo, 938 S.W.2d at 169 (citing Findlay, 611 S.W.2d at 58). See also Standard Constructors, Inc. v. Chevron Chemi­cal Co., 101 S.W.3d 619, 627–28 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (no bad faith when initial demand was $531,424 and amount claimed at trial was only $97,784).

Two cases have been identified where courts found that demands seeking twice the amount actually due were excessive. See Mossler v. Nouri, No. 03-08-00476, 2010 WL 2133940, at *8 (Tex. App.—Austin May 27, 2010, pet. denied) (mem. op.) (plaintiff through attorney demanded twice what plaintiff admitted at trial was owed, and plaintiff’s attorney told defen­dants an amount that would satisfy their pay­ment obligations but plaintiff later refused the tender of that amount by defendants); Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412, 418 (Tex. App.—Corpus Christi–Edinburg 2001, pet. denied) (demand of double holdover rent exces­sive when contract clause regarding such rent “had been manifestly waived”).

Thus, an attorney should evaluate the documen­tation supporting the claim before sending a demand letter, especially where the amount owed is set forth in a document such as a lease or promissory note. Such evaluation is required for consumer debts covered by the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692–1692p. Clomon v. Jackson, 988 F.2d 1314, 1321 (2d Cir. 1993) (interpreting section 1692e(3) and (10) to require attorney participa­tion). See section 2.16:5 in this manual for addi­tional information regarding attorney participation in debt collection efforts.

§ 31.2:6Pleading and Proof

The plaintiff must plead and prove that present­ment of a contract claim was made to the oppos­ing party and that the party failed to tender performance. Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983); see also Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 496 (Tex. 1988) (no need to plead particular evidence as long as fair notice is given that plaintiff is seek­ing recovery of attorney’s fees; any defects should be addressed by special exceptions); Panizo v. Young Men’s Christian Ass’n, 938 S.W.2d 163, 168 (Tex. App.—Houston [1st Dist.] 1996, no writ) (burden of proof on claim­ant to plead and prove presentment and failure to tender performance) (citing Ellis, 656 S.W.2d at 905). For a discussion of sufficiency of the evidence, see Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d 225, 240–41 (Tex. App.—San Antonio 2001, pet. denied); see also Svoboda v. Thai, No. 01-17-00584-CV, 2019 WL 1442434, at *7 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019, no pet.) (presentment requirement not met when amount demanded in demand letter included attorney’s fees but did not specify how much of amount was damages and how much was attorney’s fees).

§ 31.2:7Oral and Written Contracts

Statutory attorney’s fees are available for a claim on a contract, oral or written. Tex. Civ. Prac. & Rem. Code § 38.001(8). There is no need for an attorney’s fee provision in a contract to recover attorney’s fees under this statute. First City Bank v. Guex, 677 S.W.2d 25, 30 (Tex. 1984); Dickerson v. DeBarbieris, 964 S.W.2d 680, 687 n.11 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

A “written contract” includes a negotiable instrument. Community National Bank v. Chan­nelview Bank, 814 S.W.2d 424, 427 (Tex. App.—Houston [1st Dist.] 1991, no writ); Bar­ham v. Sugar Creek National Bank, 612 S.W.2d 78, 80–81 (Tex. App.—Houston [14th Dist.] 1981, no writ).

§ 31.2:8Rendered Services

For the purposes of Texas Civil Practice and Remedies Code chapter 38, “rendered services” include generally any act performed for the ben­efit of another under some arrangement or agreement to perform the service. Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895 (Tex. 1962) (interpreting predecessor statute); Mathews Construction Co. v. Jasper Housing Construction Co., 528 S.W.2d 323, 326–27 (Tex. App.—Beaumont 1975, writ ref’d n.r.e.). Rendered services include the following:

1.Ground preparation work performed by a dirt contractor. Mathews Con­struction Co., 528 S.W.2d at 327.

2.Utility company’s furnishing of elec­tricity to owners of apartment houses. Caston v. Texas Power & Light Co., 501 S.W.2d 472, 473 (Tex. App.—Texarkana 1973, no writ).

3.Advertising and promotional services provided by the plaintiff, including those provided by third parties retained by the plaintiff for the defen­dant’s benefit. Clark Advertising Agency, Inc. v. Tice, 490 F.2d 834, 837–38 (5th Cir. 1974).

4.Architect’s services. Allison v. Doug­las, 531 S.W.2d 445, 447–48 (Tex. App.—Waco 1975, no writ).

5.Engineer’s services. Mitchell v. M.M.M., Inc., 261 S.W.2d 472, 475 (Tex. App.—Galveston 1953), rev’d on other grounds, 265 S.W.2d 584 (Tex. 1954).

6.Accountant’s services. Williams v. Milliger, 352 S.W.2d 794, 796 (Tex. App.—Houston 1961, writ ref’d n.r.e.).

7.Attorney’s services. McLeod, Alexan­der, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1487–88 (5th Cir. 1990); see also Youngblood v. Wilson & Cureton, 321 S.W.2d 887, 888 (Tex. App.—Fort Worth 1959, writ ref’d n.r.e.) (applying predecessor statute).

§ 31.2:9“Labor Done”

For purposes of Texas Civil Practice and Reme­dies Code chapter 38, a claim for “labor done” is a claim for a physical-exertion type of personal service arising out of toil or manual labor for the direct benefit of the defendant. See Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814, 819–20 (Tex. 1970) (interpreting predecessor stat­ute). The toil or manual labor may be performed by employees of a business, and the business may bring the action. Maxwell Lumber Co. v. Merle Greer Co., 501 S.W.2d 454, 456–57 (Tex. App.—Tyler 1973, no writ).

There must be a contractual relationship between the person performing the labor (or his employer) and the person against whom the claim is asserted. First National Bank v. Sledge, 653 S.W.2d 283, 288 (Tex. 1983), superseded by statute on other grounds as recognized in Morrell Masonry Supply, Inc. v. Lupe’s Shenan­doah Reserve, LLC, 363 S.W.3d 901, 906 (Tex. App.—Beaumont 2012, no pet.) (subcontractors not entitled to attorney’s fees from property owner).

§ 31.2:10“Material Furnished”

The “material” referred to in Tex. Civ. Prac. & Rem. Code § 38.001 is the substance or sub­stances or the part, goods, stock, or the like of which anything is composed or may be made. Pacific Coast Engineering Co. v. Trinity Con­struction Co., 481 S.W.2d 406, 407 (Tex. 1972); Ferrous Products Co. v. Gulf States Trading Co., 332 S.W.2d 310, 313 (Tex. 1960). If the item furnished is the final or end product, not to be used as a component of a further or larger product, it is not “material.” See Pacific Coast Engineering Co., 481 S.W.2d at 407. Texas courts have held the following to be materials:

1.Water control gates furnished by a subcontractor to a general contractor to be used by the latter in a dam proj­ect. Pacific Coast Engineering Co., 481 S.W.2d at 408.

2.Steel beams. Ferrous Products Co., 332 S.W.2d at 313.

3.Ready-mixed concrete. Page v. Supe­rior Stone Products, Inc., 412 S.W.2d 660, 666 (Tex. App.—Austin 1967, writ ref’d n.r.e.).

4.Fabricated plastic component parts used by the recipient in the assembly of fire extinguishers. Ganda, Inc. v. All Plastics Molding, Inc., 521 S.W.2d 940, 944 (Tex. App.—Waco 1975, writ ref’d n.r.e.).

5.Fabricated metal housing for an elec­trical generator supplied to and used by a general contractor in completing its construction project. Ambox, Inc. v. Stewart & Stevenson Services, Inc., 518 S.W.2d 428, 432–33 (Tex. App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.).

§ 31.3Award of Attorney’s Fees Based on Contract

Contracting parties may include fee-award pro­visions in their agreements. Such provisions need not necessarily comply with Texas Civil Practice and Remedies Code chapter 38’s requirements governing oral and written con­tracts. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 484–85 (Tex. 2019) (citing Intercontinental Group Part­nership v. KB Home Lone Star LP, 295 S.W.3d 650, 653 (Tex. 2009)). The main difference is that, under chapter 38, a plaintiff must recover damages, whereas under a contract prevailing-party provision, the party seeking attorney’s fees is not required to prove damages. For example, in Rohrmoos, the parties’ lease agreement allowed for a fee award to the “prevailing party” in “any action to enforce the terms of [the] Lease.” Noting that the lease did not explicitly require the prevailing party to recover damages in order to be awarded attorney’s fees, the court determined that chapter 38’s requirement that a prevailing party recover damages did not con­trol. Rohrmoos Venture, 578 S.W.3d at 484–85 (citing Green International, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997)).

§ 31.3:1Guarantor Liability Based on Contract

If the underlying contract provides for payment of attorney’s fees by the obligor, the guarantor of the obligation is similarly liable for attorney’s fees. Barclay v. Waxahachie Bank & Trust Co., 568 S.W.2d 721, 724–25 (Tex. App.—Waco 1978, no writ); McGhee v. Wynnewood State Bank, 297 S.W.2d 876, 884 (Tex. App.—Dallas 1956, writ ref’d n.r.e.). If the guaranty agree­ment itself provides for the guarantor’s liability for payment of attorney’s fees, the guarantor is liable. See Beltran v. Groos Bank, N.A., 755 S.W.2d 944, 950–51 (Tex. App.—San Antonio 1988, no writ).

Even without an express agreement to pay attor­ney’s fees, a guarantor is nonetheless liable under an oral or written contract, pursuant to Texas Civil Practice and Remedies Code chap­ter 38. See Robinson v. Surety Insurance Co. of California, 688 S.W.2d 705, 711 (Tex. App.—Fort Worth 1985, no writ) (analyzing predeces­sor statute).

§ 31.3:2Liability of Endorser

The endorser of a note that provides for recov­ery of attorney’s fees is liable for those fees even in the absence of an express agreement by the endorser to pay attorney’s fees. Dewey v. C.I.T. Corp., 374 S.W.2d 298, 299–300 (Tex. App.—Amarillo 1963, writ ref’d n.r.e.).

§ 31.4Proving Attorney’s Fees in State Court

§ 31.4:1Amount Determined by Fact Finder

The Texas Supreme Court has held that “[t]he reasonableness of attorney’s fees is ordinarily left to the fact finder, and a reviewing court may not substitute its judgment for the jury.” Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009) (remanding for lack of evidence) (citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990) (per curiam) (jury case)).

§ 31.4:2Proof of Reasonableness and Necessity

Any award of attorney’s fees must be supported by evidence that the fees are both reasonable and necessary. Powell Electrical Systems, Inc. v. Hewlett Packard Co., 356 S.W.3d 113, 127–28 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991)). To prove rea­sonable attorney’s fees, expert testimony is needed, most often in the form of an interested witness. Powell, 356 S.W.3d at 128 (citing Gar­cia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010)). An interested witness can be the attor­ney seeking the fees or another attorney hired to opine on the reasonableness and necessity of the fees requested. See sections 31.8 and 31.9 below for a detailed discussion about proving the rea­sonableness and necessity of attorney’s fees.

§ 31.5Historical Tests Applied before 2019

Historically, five separate tests have been applied to prove up attorney’s fees.

The “Contingent Fee” Method:      A contin­gent fee is “[a] fee charged for a lawyer’s ser­vices only if the lawsuit is successful or is favorably settled out of court. Contingent fees are usu[ally] calculated as a percentage of the client’s net recovery . . . .” Black’s Law Dictio­nary 399 (11th ed. 2019); see Mid-Continent Casualty Co. v. Kipp Flores Architects, L.L.C., 602 F. App’x 985, 999–1000 (5th Cir. 2015) (citing Texas and Fifth Circuit cases); McDon­ald v. Fox, No. 13-11-00479-CV, 2012 WL 5591795, at *4 (Tex. App.—Corpus Christi–Edinburg Nov. 15, 2012, no pet.) (mem. op.); VingCard A.S. v. Merrimac Hospitality Systems, Inc., 59 S.W.3d 847, 869–70 (Tex. App.—Fort Worth 2001, pet. denied) (op. on reh’g).

The “Traditional Lump Sum” Method:
This method relies on simple testimony that the fees are reasonable and necessary and allows for the presumption of reasonableness found in Tex. Civ. Prac. & Rem. Code § 38.003. This test allows a court to take judicial notice of reason­able and necessary fees to support and uphold a fee award. See Tex. Civ. Prac. & Rem. Code § 38.004; Gill Savings Ass’n v. Chair King, 797 S.W.2d 31, 32 (Tex. 1990). Moreover, this method was applied in Garcia v. Gomez, 319 S.W.3d 638, 641–43 (Tex. 2010), and often upheld in opinions from the Dallas, Fort Worth, San Antonio, and Houston (first district) courts of appeals as well as the Fifth Circuit. See In re Pirani, 824 F.3d 483, 501 (5th Cir. 2016) (evi­dence of attorney’s experience, time taken from other work, total amount of fees, and reason­ableness of fees charged is sufficient). This test was applied as recently as 2018 in Propel Finan­cial Services, LLC v. Perez, No. 01-17-00682-CV, 2018 WL 3580935, at *6 (Tex. App.—Houston [1st Dist.] July 26, 2018, no pet.) (mem. op.).

The “Stringent Light” Method:      This method requires only testifying to a lump sum of money and possibly other evidence such as a lump sum of hours, the hourly rate, and reference to some or all eight factors set out in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997). See Ferrant v. Graham Associ­ates, Inc., No. 02-12-00190-CV, 2014 WL 1875825, at *7–8 (Tex. App.—Fort Worth May 8, 2014, no pet.) (mem. op.); Paez v. Trent Smith Custom Homes, LLC, No. 04-13-00394-CV, 2014 WL 1089751, at *4–5 (Tex. App.—San Antonio Mar. 19, 2014, no pet.); Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 846 (Tex. App.—Dallas 2014, no pet.).

The “Stringent Heavy Duty” or Lodestar Method:      This method emphasizes contempo­raneous time records, as exemplified by the supreme court’s holdings in El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012), and Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014). (Note that Long also allowed for the con­tingent fee arrangement to be used, but held that since the plaintiff recovered no money, the con­tingent fee arrangement could not be used, and the plaintiff had to rely on the lodestar (i.e., stringent heavy duty) method to prove up the requested fees.) In 2019, the Texas Supreme Court adopted the lodestar method as its pre­ferred method in Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019). See section 31.6 below.

The “Ultra Stringent” or Ultra Lodestar Method:      This method requires compliance with the lodestar approach but emphasizes that the most important factor is the result obtained. See, e.g., Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 548 (Tex. 2009); Ware v. United Fire Lloyds, No. 09-12-00061-CV, 2013 WL 1932812, at *3 (Tex. App.—Beaumont May 9, 2013, no pet.) (mem. op.). Note that the Fifth Circuit has affirmed this test in Gurule v. Land Guardian, Inc., 912 F.3d 252, 257–58 (5th Cir. 2018).

§ 31.6Lodestar Test Prevails in 2019

On April 26, 2019, the Texas Supreme Court declared the lodestar method described at sec­tion 31.5 above to be the law in Texas. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019). Rohrmoos Venture involved a dispute over a commercial lease that permitted the prevailing party to col­lect reasonable attorney’s fees from the nonpre­vailing party. Testifying in support of the claim for $800,000 in fees, the attorney for the prevail­ing party stated that his hourly rate was $430 and that similar disputes would normally involve 750 to 1,000 hours of work. He then explained that this particular case required more time and effort due to the unnecessary actions of opposing counsel, which caused the case to be protracted and unnecessarily complicated. The attorney finally pointed to specific Arthur Andersen factors to justify the reasonableness of the fees—the amount in controversy, the com­plexity of the case, and his knowledge and expe­rience. However, he presented no details regarding the work done (such as contempora­neous time records) and failed to show who per­formed the work, when the work was done, what work was performed, and how much time was spent on specific tasks. Consequently, the court reversed the attorney’s fee award for failing to comply with the lodestar method. Rohrmoos Venture, 578 S.W.3d at 503–05.

The Rohrmoos opinion addressed the conflicting appellate court holdings regarding which test applied in awarding attorney’s fees. Rohrmoos Venture, 578 S.W.3d at 496–97. In El Apple I, Ltd. v. Olivas, the supreme court had applied the lodestar method of proving attorney’s fees in a case involving the Texas Commission on Human Rights Act (TCHRA). El Apple I, Ltd., 370 SW.3d 757 (Tex. 2012). After El Apple I, however, many lower courts continued to apply methods other than the lodestar analysis in cases involving statutes other than the TCHRA. See, e.g., Propel Financial Services, LLC v. Perez, No. 01-17-00682-CV, 2018 WL 3580935, at *4 (Tex. App.—Houston [1st Dist.] July 26, 2018, no pet.) (mem.op.) (traditional method applied using Arthur Andersen factors plus contract arrangement with client); Ferrant v. Graham Associates, Inc., No. 02-12-00190-CV, 2014 WL 1875825, at *9 (Tex. App.—Fort Worth May 8, 2014, no pet.) (mem. op.) (traditional method applied; attorney stated that fees were reasonable and necessary and referred to Arthur Andersen factors); Metroplex Mailing Services, LLC v. R.R. Donnelley & Sons Co., 410 S.W.3d 889, 900 (Tex. App.—Dallas 2013, no pet.) (tra­ditional method applied).

The Rohrmoos Venture opinion unequivocally rejected the holdings in these cases:

After El Apple, questions surfaced regarding whether the lodestar method applies in cases where the request for attorney’s fees is not based on the TCHRA or other state statutes that require application of the lodestar method. But any doubt as to the lodestar method’s applicability should have been resolved when we applied El Apple’s holding to a $339,000 award under a different fee-shifting statute that did not “require that attorney’s fees be determined under a lodestar method.”

Rohrmoos Venture, 578 S.W.3d at 495 (quoting City of Laredo v. Montano, 414 S.W.3d 731, 736 (Tex. 2013) (per curiam)). The court was emphatic that many lower courts were in error, noting that even after its three opinions in El Apple I, City of Laredo, and Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014) (per curiam), lower courts were still upholding attorney’s fees awards that did not apply the lodestar method. Rohrmoos Venture, 578 S.W.3d at 495–96. In the court’s words, “We have clearly held . . . that generalities . . . are not sufficient to support a fee-shifting award under the lodestar method, which applies in fee-shifting situations.” Rohr­moos Venture, 578 S.W.3d at 496.

One source of confusion was Garcia v. Gomez, 319 S.W.3d 638, 642–44 (Tex. 2010), where the supreme court upheld a fee award based on the traditional lump sum method. The Rohrmoos Venture opinion limited Garcia to no-evidence challenges, as opposed to legal sufficiency chal­lenges: “Garcia is confined to a no-evidence challenge and should not be read, in any way, as a guiding statement on the standard for whether evidence is legally sufficient to support a fee-shifting award of attorney’s fees.” Rohrmoos Venture, 578 S.W.3d at 497. In the court’s own words: “To summarize, the lodestar method as we presented it in El Apple applies for determin­ing the reasonableness and necessity of attor­ney’s fees in a fee-shifting situation . . . .” Rohrmoos Venture, 578 S.W.3d at 501. In short, the court declared, “It should have been clear from our opinions in El Apple, Montano, and Long that we intended the lodestar analysis to apply to any situation in which an objective cal­culation of reasonable hours worked times a rea­sonable rate can be employed.” Rohrmoos Venture, 578 S.W.3d at 497–98.

In the court’s words, the lodestar method has “become the guiding light” in fee-shifting juris­prudence. Rohrmoos Venture, 578 S.W.3d at 493 (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551–57 (2010)).

§ 31.7Lodestar Method Generally: A Two-Step Analysis

Determining an attorney’s fee award using the lodestar method requires a two-step analysis, first set forth in 2012 by the Texas Supreme Court in El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012):

Under the lodestar method, the deter­mination of what constitutes a rea­sonable attorney’s fee involves two steps. First, the court must determine the reasonable hours spent by counsel in the case and a reasonable hourly rate for such work. The court then multiplies the number of such hours by the applicable rate, the product of which is the base fee or lodestar. The court may then adjust the base lode­star up or down (apply a multiplier), if relevant factors indicate an adjust­ment is necessary to reach a reason­able fee in the case.

Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 494 (Tex. 2019) (citing El Apple I, Ltd., 370 S.W.3d at 760).

Thus, the lodestar method’s two steps are—

1.multiply the reasonable hours worked by the reasonable hourly rate to calcu­late the “base lodestar figure,” and

2.adjust the base lodestar figure up or down based on relevant factors.

Rohrmoos Venture, 578 S.W.3d at 498–500.

The amount obtained by step 1 is presumptively reasonable because it reflects most of the Arthur Andersen factors. Rohrmoos Venture, 578 S.W.3d at 496. See also Rohrmoos Venture, 578 S.W.3d at 499 (“base lodestar figure is pre­sumed reasonable if the claimant ‘has carried his burden of showing that the claimed rate and number of hours are reasonable’”) (quoting Blum v. Stenson, 465 U.S. 886, 897 (1984)).

Possible Additional Requirements:      Note that at least one court of appeals has modified the lodestar method since the Rohrmoos opinion by requiring the fees to be “moderate or fair” and to bear some relationship to the amount in controversy. See Toledo v. KBMT Operating Co., LLC, 581 S.W.3d 324, 333 (Tex. App.—Beaumont 2019, pet. filed) (under Texas law, reasonable attorney’s fee calculation results in award that is “not excessive or extreme, but rather moderate or fair”) (quoting Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016)); see also Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010)) (award of attorney’s fees under Texas Medical Liability Act for failure to timely serve expert report; “a reasonable fee is one that is not excessive or extreme, but rather moderate or fair”). The Rohrmoos Venture opinion did not address the additional test of whether a reason­able fee is “moderate or fair.”

§ 31.7:1Advantages of Lodestar Method

The court in Rohrmoos Venture identified four advantages to applying the lodestar method:

1.the method relies on “the prevailing market rates in the relevant commu­nity”;

2.the method produces a fee award that roughly approximates the fee the attor­ney would have received if the attor­ney were paid on an hourly basis;

3.the calculation is “objective,” thus limiting the discretion of trial judges; and

4.the method permits meaningful judi­cial review and produces “reasonably predictable results.”

Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 493 (Tex. 2019) (quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551–52 (2010)). The court was also concerned with preventing “grossly excessive” fee awards. Rohrmoos Venture, 578 S.W.3d at 496.

§ 31.7:2Lodestar Method as Shorthand Version of Arthur Andersen Factors

In Rohrmoos Venture, the supreme court consid­ered the lodestar method to be a “short hand ver­sion” of the Arthur Andersen factors. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 496 (Tex. 2019). As noted at sec­tion 31.5 above, some courts have allowed proof of reasonable and necessary attorney’s fees by reference to the eight factors listed in Arthur Andersen & Co. v. Perry Equipment Corp.:

(1)the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly;

(2)the likelihood . . . that the acceptance of the particular employment will preclude other employment by the lawyer;

(3)the fee customarily charged in the locality for similar legal ser­vices;

(4)the amount involved and the results obtained;

(5)the time limitations imposed by the client or by the circum­stances;

(6)the nature and length of the pro­fessional relationship with the client;

(7)the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8)whether the fee is fixed or con­tingent on results obtained or uncertainty of collection before the legal services have been rendered.

Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997) (quot­ing Tex. Disciplinary R. Prof’l Conduct R. 1.04(b) (listing these eight factors but not excluding other relevant factors)).

The Rohrmoos Venture opinion discussed these factors but explained that the 2012 El Apple I opinion “provided additional guidelines for determining reasonableness and necessity by introducing the lodestar calculation to Texas jurisprudence.” Rohrmoos Venture, 578 S.W.3d at 494. Moreover, the court, relying on its fed­eral counterpart, recognized “that the base lode­star figure accounts for most of the relevant Arthur Andersen considerations.” Rohrmoos Venture, 578 S.W.3d at 500 (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010)). In particular, the court wrote that the base lodestar calculation includes consideration of factors 1, 3, 4, 7, and 8. Rohrmoos Venture, 578 S.W.3d at 500–01. The court thus referred to the lodestar method as a shorthand version of the Arthur Andersen factors. Rohrmoos Venture, 578 S.W.3d at 496.

§ 31.7:3Terms of Fee Agreement or Amount of Fees Paid Not Relevant

The fee agreement between the client and attor­ney is not controlling. As the supreme court explained, “[A] client’s agreement to a certain fee arrangement or obligation to pay a particular amount does not necessarily establish that fee as reasonable and necessary.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 488 (Tex. 2019). Furthermore, a client’s testi­mony as to the amount of fees paid is not legally sufficient evidence of reasonable and necessary attorney’s fees. See Jones v. Patterson, No. 11-17-00112-CV, 2019 WL 2051301, at *9 (Tex. App.—Eastland May 9, 2019, no pet.) (mem. op.).

§ 31.8Step One: Determining Lodestar Figure

§ 31.8:1Five Minimum Requirements for Sufficient Evidence of Attorney’s Fees

As noted above, step one of the lodestar method requires the fact finder to multiply the reason­able hours worked by the reasonable hourly rate to calculate the “base lodestar figure.” Rohr­moos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex. 2019).

Evidence sufficient to support the step-one cal­culation includes, at a minimum: (1) the particu­lar services performed, (2) who performed the services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing such services. Rohrmoos Venture, 578 S.W.3d at 498 (citing El Apple I, Ltd. v. Oli­vas, 370 S.W.3d 757, 762–63 (Tex. 2012)). See, e.g., USAA Texas Lloyd’s Co. v. Griffin, No. 13-17-00337-CV, 2019 WL 2611015, at *14 (Tex. App.—Corpus Christi–Edinburg June 26, 2019, no pet.) (mem. op.); Air Jireh Service Corp. v. Weaver & Jacobs Constructors, Inc., No. 13-15-00180-CV, 2019 WL 3023315, at *5 (Tex. App.—Corpus Christi–Edinburg July 11, 2019, no pet. h.) (per curiam) (mem. op.).

For example, the fee application described in Memon v. Pinnacle Credit Services, LLC, fared well under the lodestar method. No. 4:07-cv-3533, 2009 WL 6825243, at *2–4 (S.D. Tex. May 21, 2009). The court methodically exam­ined all aspects of the application, including whether it met the billing judgment rule (i.e., did not include unproductive, excessive, or redun­dant hours) and whether the hourly rates were in line with market rates.

Two examples of cases where courts applied the lodestar method and where proper billing meth­ods were introduced into evidence to justify awards exceeding the amount in controversy are Cordova v. Southwestern Bell Yellow Pages, Inc., 148 S.W.3d 441, 448–49 (Tex. App.—El Paso 2004, no pet.) ($7,092.18 in damages with a $20,885 attorney’s fee award), and Sibley v. RMA Partners, L.P./Sixth RMA Partners, L.P., 138 S.W.3d 455, 458–59 (Tex. App.—Beau­mont 2004, no pet.) (per curiam) ($19,342.82 in principal debt with an $82,748.50 attorney’s fee award). In both cases the defendants mounted significant defenses that caused the attorney’s fees to exceed the amount in controversy. Even so, the billing records were legally sufficient to show the fees were justified under Texas law.

§ 31.8:2Use of Contemporaneous Billing Records Strongly Encouraged

In regard to billing records, the Rohrmoos Ven­ture opinion initially states that contemporane­ous time records “are not required to prove that the requested fees are reasonable and neces­sary.” Rohrmoos Venture v. UTSW DVA Health­care, LLP, 578 S.W.3d 469, 502 (Tex. 2019). But the court goes on to strongly encourage the use of time records and billing records:

Nevertheless, billing records are strongly encouraged to prove the rea­sonableness and necessity of requested fees when those elements are contested. In El Apple, we acknowledged the value of contem­poraneous records for lodestar calcu­lations: “An attorney could, of course, testify to these details, but in all but the simplest cases, the attor­ney would probably have to refer to some type of record or documenta­tion to provide this information. Thus, when there is an expectation that the lodestar method will be used to calculate fees, attorneys should document their time much as they would for their own clients, that is, contemporaneous billing records or other documentation recorded rea­sonably close to the time when the work is performed.”

Rohrmoos Venture, 578 S.W.3d at 502 (quoting El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012)); see also Rohrmoos Venture, 578 S.W.3d at 502 (observing that hours “‘not prop­erly billed to one’s client also are not properly billed to one’s adversary’ under a fee-shifting statute”) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). “Creating the documents makes them available for production, provides a basis for testifying as to the reasonableness and necessity of the requested fees, and permits cross-examination.” Rohrmoos Venture, 578 S.W.3d at 502. This follows the practice in fed­eral courts, which require fee applications to include “contemporaneously created time records that specify, for each attorney, the date, the hours expended, and the nature of the work done.” Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998).

Practice Tip:      Client billing records should be either initially created in a way that protects cli­ent confidentiality and attorney-client privilege or redacted appropriately before submission in support of a claim for attorney’s fees. See gener­ally Tex. Disciplinary Rules Prof’l Conduct R. 1.05, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (Tex. State Bar R. art X, § 9).

§ 31.8:3Step One of Lodestar Method: The Billing Judgment Rule

The “billing judgment rule” requires the fact finder to exclude from a fee request hours that are excessive, redundant, or otherwise unneces­sary, “just as a lawyer in private practice ethi­cally is obligated to exclude such hours from his fee submission.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498–99 (Tex. 2019); see also Toledo v. KBMT Operat­ing Co., LLC, 581 S.W.3d 324, 329 (Tex. App.—Beaumont 2019, pet. filed) (fact finder should exclude “[c]harges for duplicative, excessive, or inadequately documented work”) (quoting El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762 (Tex. 2012)).

Federal courts have for years applied an analysis similar to the billing judgment rule. In determin­ing whether an attorney’s fee is reasonable, a federal court will consider (1) whether the hourly rate is reasonable and (2) whether the hours worked were excessive, redundant, or oth­erwise unnecessary. See, e.g., Vanderbilt Mort­gage & Finance, Inc. v. Flores, No. C-09-312, 2011 WL 2160928, at *3 (S.D. Tex. May 27, 2011) (citing Hensley v. Eckerhart, 461 U.S. 424, 433–34 (1983)).

Factor One: Is Hourly Rate Reasonable?
In Vanderbilt, lead counsel charged $800 per hour and co-counsel charged $200 per hour. Relying on Memon v. Pinnacle Credit Services, LLC, No. 4:07-CV-3533, 2009 WL 6825243 (S.D. Tex. May 21, 2009), the court found that the $800 rate exceeded the prevailing market rate. Vanderbilt, 2011 WL 2160928, at *3. In reducing lead counsel’s hourly rate to $350, the court took judicial notice of—

[T]he Texas State Bar’s “Hourly Rates in 2009 Report,” the most recent such report. This report states that the median hourly rate for Credi­tor-Debtor attorneys in Texas was $197 per hour. For Securities Law attorneys, the median is $309 per hour. The median hourly rate for attorneys in the Corpus Christi region was $198 per hour. The high and low rates are not provided in the 2009 report, but in the 2005 report, the high for Creditor-Debtor attorneys was $350 per hour.

Vanderbilt, 2011 WL 2160928, at *3 n.4. (Note that the last State Bar report on attorney’s fees was published in 2015 and is no longer pub­lished.) Thus, one can see that judges may look at objective data to determine what fees are usual and customary. Therefore, a testifying attorney may have to conduct independent research to opine on reasonable rates. Having this case law and other objective data may help one prove up attorney’s fees or, conversely, pro­vide a solid basis to attack a requested award.

Factor Two: Were Hours Worked Excessive or Redundant?      In Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998), the Second Circuit, following the U.S. Supreme Court’s 1983 Hensley opinion, addressed the issue of excessive hours as well as redundant and unnec­essary hours. See Hensley, 461 U.S. at 433–34. Such hours are to be deducted by, among other methods, calculating “a reasonable percentage of the number of hours claimed ‘as a practical means of trimming fat from a fee application.’” Kirsch, 148 F.3d at 173 (quoting New York Ass’n for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983)).

Hours that are not properly documented may also be deducted. See Kirsch, 148 F.3d at 172; see also Louisiana Power & Light Co. v. Kell­strom, 50 F.3d 319, 324 (5th Cir. 1995) (per curiam) (attorneys were required to provide con­temporaneous time and billing records or other documents for the court to examine to determine which hours are compensable and which are not).

§ 31.8:4Examples of Proper and Improper Billing; Federal Cases Employing Lodestar Method

In words with profound consequences, the Van­derbilt opinion warned attorneys what was not acceptable documentation in a fee application:

Litigants “take their chances” in sub­mitting fee applications without ade­quate information for the court to determine the reasonableness of the hours expended or with vaguely described tasks such as “review pleadings,” “correspondence,” or documents [sic].

Vanderbilt Mortgage & Finance, Inc. v. Flores, No. C-09-312, 2011 WL 2160928, at *5 (S.D. Tex. May 27, 2011) (citing Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 327 (5th Cir. 1995).

The items criticized by the court included—

1.sending on one day no fewer than six consecutive e-mails to opposing coun­sel regarding “discovery”;

2.having each e-mail take twelve min­utes, costing $160 each;

3.sending on one day seven consecutive e-mails regarding the deposition of the same individual; and

4.billing the full fee of $800 per hour for travel (billing at half the hourly rate would be better).

Vanderbilt, 2011 WL 2160928, at *5. The court, relying on multiple authorities, noted that—

1.repetitive billing is an example of a lack of billing judgment. Vanderbilt, 2011 WL 2160928, at *5 (citing Mis­sissippi State Chapter Operation Push v. Mabus, 788 F. Supp. 1406, 1416 n.22 (N.D. Miss. 1992)); and

2.attorney travel time should be at fifty percent of an attorney’s rate in the absence of documentation showing actual legal work done. Vanderbilt, 2011 WL 2160928, at *6 (citing Wat­kins v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993), and other opinions).

For such improper billing judgment, courts have imposed reductions from 10 percent (see Saizan v. Delta Concrete Products, Co., Inc., 448 F.3d 795, 801 (5th Cir. 2006)) to 30 percent (Leroy v. City of Houston, 831 F.2d 576, 586 (5th Cir. 1987)). In Vanderbilt, the court lowered the requested fees by 10 percent for poor billing judgment. Vanderbilt, 2011 WL 2160928, at *6.

§ 31.8:5Application of Lodestar Method after Rohrmoos: A Texas Court’s Analysis of Step One of Lodestar Method

Rohrmoos makes clear that the lodestar method is the preferred method for proving up attor­ney’s fees in any fee-shifting case. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 495–96 (Tex. 2019). See section 31.11 below for a discussion of the judicial-notice exception to this rule for claims made under Tex. Civ. Prac. & Rem. Code § 38.001.

It is instructive to look at a recent case applying Rohrmoos to an attorney’s fee request. In Toledo v. KBMT Operating Co., LLC, 581 S.W.3d 324, 333 (Tex. App.—Beaumont 2019, pet. filed), the party seeking attorney’s fees supplied billing records, yet the court of appeals reversed the award of $256,689 because the billing records failed to pass the billing judgment rule and the scrutiny that rule brings to all fee requests. See section 31.8:3 above. The court warned that trial judges are not mere rubber stamps and must not accept “carte blanche the amount appearing on the bill.” Toledo, 581 S.W.3d at 330.

The court noted many improper billing practices in reversing the attorney’s fee award. Among them were (1) a duplication of work by attor­neys (sometimes called “wolf packing”); (2) over-researching legal issues by having mul­tiple attorneys do research on the same topic, thus performing essentially the same legal research (for example, the law firm conducted research on issues already argued in prior motions); (3) billing paralegal and attorney rates for clerical and ministerial work (copying, mail­ing, and organizing files do not justify attorney billing rates); and (4) inadequate or vague descriptions that did not adequately describe the tasks performed. Toledo, 581 S.W.3d at 331. For specific examples of improper or vague descrip­tions, see the discussion of the Vanderbilt case at section 31.8:4 above. In reversing the attor­ney’s fee award, the Toledo court emphasized that counsel had failed to adequately explain why so many attorneys on the case appeared to work on the same documents and briefs. Toledo, 581 S.W.3d at 331.

§ 31.9Step Two of Lodestar Method: Adjustments to Lodestar Figure

Once the lodestar calculation is determined, a court must still consider adjusting the calculated amount based on other considerations.

§ 31.9:1Results Obtained

The “amount involved and result obtained” fac­tor was key to the Vanderbilt court’s decision to reduce the fee award. See section 31.8:4 above. The district court, citing the U.S. Supreme Court, wrote that the most important consider­ation in determining the propriety of an attor­ney’s fee award is the degree of success obtained. Vanderbilt Mortgage & Finance, Inc. v. Flores, No. C-09-312, 2011 WL 2160928, at *4 (S.D. Tex. May 27, 2011) (citing Farrar v. Hobby, 506 U.S. 103, 114 (1992) (if only partial or limited success is achieved, lodestar calcula­tion may be excessive)). See also Gurule v. Land Guardian, Inc., 912 F.3d 252, 257–58 (5th Cir. 2018) (emphasizing results-obtained factor).

In Vanderbilt, one party to the suit recovered only $120,000, but the requested legal fees exceeded $1,500,000. With little discussion, the court found this request excessive. Vanderbilt, 2011 WL 2160928, at *4 (citing Barker v. Eck­man, 213 S.W.3d 306, 313–14 (Tex. 2006) (holding when damages award reduced to one-seventh of original amount, remand of attor­ney’s fees request required)). In short order, the court reduced the lodestar calculation by 60 per­cent. Vanderbilt, 2011 WL 2160928, at *4. (Note that the ratio of attorney’s fees to damages in Vanderbilt was more than twelve to one. The practitioner should be aware that since El Apple I, courts have scrutinized attorney’s fee awards that are greater than a two-to-one ratio of fees to damages.)

§ 31.9:2Awards in Similar Cases

Although federal courts have superior staffing and thus are able to research similar cases, a dil­igent attorney may be able to find useful analo­gous fee-award cases. In Vanderbilt, the court reviewed various Texas cases regarding the fraudulent lien statute. Vanderbilt Mortgage & Finance, Inc. v. Flores, No. C-09-312, 2011 WL 2160928, at *4–5 (S.D. Tex. May 27, 2011). The range of awards for a fraudulent lien violation was from $655 to $132,000. Because the court could find only two cases that awarded more than $50,000, it reduced the lodestar by 20 per­cent. Vanderbilt, 2011 WL 2160928, at *5.

For additional case law regarding the applica­tion of both step one and step two of the lodestar method, see Memon v. Pinnacle Credit Services, LLC, No. 4:07-CV-3533, 2009 WL 6825243, at *2 (S.D. Tex. May 21, 2009).

§ 31.10Contingent Fee Method after Rohrmoos

Citing numerous U.S. Supreme Court holdings, the court in Rohrmoos Venture rejected any adjustment to the lodestar calculation for results obtained or even the contingent nature of the attorney’s fee agreement. See Rohrmoos Ven­ture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 492–93, 500 n.12 (Tex. 2019). The opinion quotes the U.S. Supreme Court:

We note at the outset that an enhancement for contingency would likely duplicate in substantial part factors already subsumed in the [base] lodestar. The risk of loss in a particular case (and, therefore, the attorney’s contingent risk) is the product of two factors: (1) the legal and factual merits of the claim, and (2) the difficulty of establishing those merits. The second factor, however, is ordinarily reflected in the lode­star—either in higher number of hours expended to overcome the dif­ficulty, or in the higher hourly rate of the attorney skilled and experienced enough to do so. Taking account of it again through lodestar enhancement amounts to double counting.

The first factor (relative merits of the claim) is reflected in the [base] lode­star, but there are good reasons why it should play no part in the calculation of the award. It is, of course, a factor that always exists (no claim has 100% chance of success), so that computation of the lodestar would never end the court’s inquiry in con­tingent-fee cases.

Rohrmoos Venture, 578 S.W.3d at 492–93 (quoting City of Burlington v. Dague, 505 U.S. 557, 562–63 (1992) (citations omitted)).

§ 31.10:1Contingent Fee Arrangement and Rohrmoos: An Area of Ambiguity

As noted above, the Texas Supreme Court has clearly adopted the lodestar method in fee-shift­ing cases. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 501 (Tex. 2019) (“To summarize, the lodestar method as we presented it in El Apple applies for determin­ing the reasonableness and necessity of attor­ney’s fees . . . .”) (quoting El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012)). The court rejected any reliance on a fee agreement between a client and attorney to prove what are reasonable and necessary legal fees. Rohrmoos Venture, 578 S.W.3d at 498. In dicta, the court also rejected reliance on a contingent fee arrangement, quoting Arthur Andersen:

[A]lthough “[a] contingent fee may indeed be a reasonable fee from the standpoint of the parties to the con­tract,” it is not “in and of itself rea­sonable for purposes of shifting that fee to the defendant”; the fact finder is still required to “decide the ques­tion of attorney’s fees specifically in light of the work performed in the very case for which the fee is sought.”

Rohrmoos Venture, 578 S.W.3d at 498 (quoting Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818–19 (Tex. 1997)). “Therefore, the base lodestar calculation should reflect hours reasonably expended for services necessary to the litigation.” Rohrmoos Venture, 578 S.W.3d at 498 (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

The above statements seemingly dismiss contin­gent fee arrangements entirely and require the fact finder to determine the attorney’s fee issue “specifically in light of the work performed in the very case.” Rohrmoos Venture, 578 S.W.3d at 498 (quoting Arthur Andersen, 945 S.W.2d at 818). The court would not allow any adjustment in step two of the lodestar method for any factor that is subsumed in the lodestar calculation, such as the contingent compensation arrangement. Rohrmoos Venture, 578 S.W.3d at 500–01. The court found that the risk of loss in a lawsuit, such as the contingent risk, is ordinarily reflected in the lodestar—either in a higher number of hours worked or in a higher hourly rate for the attorney. Rohrmoos Venture, 578 S.W.3d at 501 (citing City of Burlington v. Dague, 505 U.S. 557, 562–63 (1992)). See also Sharma v. Khan, No. 14-17-00322-CV, 2018 WL 3911180, at *8 (Tex. App.—Houston [14th Dist.] Aug. 16, 2018, no pet.) (mem. op.) (closely examining evidence of work performed and upholding trial court’s award of fees that were less than 10 percent of contracted contin­gent fee).

Although this analysis appears to completely preclude contingency arrangements as a method to prove that a request for attorney’s fees is rea­sonable and necessary, footnote 10 in the opin­ion suggests, in an awkward fashion, that contingent fee arrangements could possibly be relevant in establishing the reasonableness of the requested fees:

We recognize that when fee agree­ments provide for arrangements other than hourly billing, the attorney will not be able to present evidence of a particular hourly rate billed or paid for the services performed. In those instances, the fee claimant, through its expert, has the burden of showing that the rate claimed for purposes of the base lodestar calculation reflects a reasonable market rate given con­siderations in Arthur Andersen, including the attorney’s experience and expertise, the novelty and com­plexity of the questions involved, any special skill required for the repre­sentation, the attorney’s risk in accepting such representation, which may be reflected in a contingent fee agreement, and any other consider­ations that would factor into an attor­ney’s fee negotiations if the attorney were to bill hourly. See Burlington, 505 U.S. at 566 (noting that “attor­neys factor in the particular risks of a case in negotiating their fee”); [Penn­sylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 566 (1986)] (recognizing that “con­siderations concerning the quality of a prevailing party’s counsel’s repre­sentation normally are reflected in the reasonable hourly rate”); Arthur Andersen, 945 S.W.2d at 818–19 (explaining that for contingent fee cases, the jury must decide reason­able and necessary fees in light of the work performed in that case, and reflecting the non-exclusive list of factors, arriving at a specific dollar amount). In this way, the contingent nature of a fee agreement, or the nature of an alternative fee arrange­ment, is taken into account in calcu­lating the presumptively reasonable fee in the first step of the analysis, prior to any potential adjustments for Arthur Andersen factors that have not yet been considered, as discussed [further in the opinion].

Rohrmoos Venture, 578 S.W.3d at 499 n.10. Thus, it appears that it may be possible to adjust one’s hourly rate based on a contingent fee arrangement. But the court gave no guidance about how this should be done, therefore refer­ence to federal jurisprudence will likely be nec­essary until Texas courts address this issue in detail. Notably, in a contingent fee case that reversed the enhancement of attorney’s fees for the straightforward but time-consuming enforcement of a settlement where no new and novel issues or similar factors were identified, the U.S. Supreme Court commented that “[t]he risk of nonpayment should be determined at the beginning of the litigation.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 729–730 (1987).

§ 31.10:2Options for Proving Attorney’s Fees when Arrangement Is Contingent

To support an award of attorney’s fees based on a contingent fee agreement, it is recommended that the attorney keep proper and complete con­temporaneous time records and exercise good billing judgment (i.e., avoid excessive, redun­dant, duplicative, and unnecessary work or hours). In other words, always follow the lode­star method and the billing judgment rule. See section 31.8:3 above. However, the attorney may also rely on the Texas Supreme Court’s language in footnote 10 of Rohrmoos and pro­vide testimony of the risk factor associated with the stated hourly rate as well as the results-obtained factor. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 499 n.10 (Tex. 2019). See section 31.10:1 above. Likewise, if possible, the attorney can classify the case as one of “the simplest cases,” in which documentation of fees is not required, as men­tioned in the Rohrmoos Venture opinion’s dis­cussion of billing records. Rohrmoos Venture, 578 S.W.3d at 502 (quoting El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012)). But see Ramirez v. Coca-Cola, No. 01-13-00278-CV, 2013 WL 5761315, at *4 (Tex. App.—Houston [1st Dist.] Oct. 22, 2013, no pet.) (mem. op.) (summary judgment reversed on attorney’s fees; issue of fact raised in “simple” suit on sworn account, where plaintiff’s sum­mary judgment affidavit did not itemize hours worked or describe time case took or whether it prevented attorney from taking other cases). The Rohrmoos Venture court specifically noted that, although contemporaneous billing records are not required, they are strongly encouraged. In the event the attorney has not kept time records, the court may allow the attorney to “recreate” the billing records based on repeated experience with similar cases. See Rohrmoos Venture, 578 S.W.3d at 502.

Practice Tip:      If the attorney is performing work for a client on a volume basis that consists of repeated, identical tasks, consider creating a form affidavit that outlines the steps undertaken to fulfill each task and, when preparing for prove up, fill in the dates and amount of time spent on each task from the attorney’s records.

§ 31.11One Exception to Rohrmoos: Judicial Notice under Texas Civil Practice and Remedies Code Chapter 38

Section 38.004 of the Texas Civil Practice and Remedies Code, which allows a court to take judicial notice of reasonable and necessary legal fees, is still alive under Rohrmoos Venture. However, courts strictly limit the application of section 38.004 to cases in which attorney’s fees are properly sought under chapter 38, that is, where the claims are for services rendered, labor performed, materials furnished, sworn accounts, and oral or written contracts. See Jones v. Pat­terson, No. 11-17-00112-CV, 2019 WL 2051301, at *9–10 (Tex. App.—Eastland May 9, 2019, no pet.) (mem. op.) (courts may not take judicial notice that usual and customary fees are reasonable unless the claim is enumer­ated in Tex. Civ. Prac. & Rem. Code § 38.001) (citing Scott v. Spalding, No. 11-07-00264-CV, 2009 WL 223459, at *5 (Tex. App.—Eastland Jan. 30, 2009, no pet. (mem. op.)). See section 31.2 above for further general discussion of chapter 38 claims. See sections 6.31, 7.1:6, 14.29:3, 19.52, and 28.28:3 in this manual for discussions of judicial notice and various sec­tion 38.001 claims.

In a case in which recovery of attorney’s fees is allowed by Tex. Civ. Prac. & Rem. Code § 38.001, the court may take judicial notice of the usual and customary attorney’s fees and the contents of the case file without receiving fur­ther evidence, in either a proceeding before the court or in a jury trial in which the amount of attorney’s fees is submitted to the court by agreement. Tex. Civ. Prac. & Rem. Code § 38.004. If the court makes a determination under section 38.004, there is a rebuttable pre­sumption that the usual and customary fees are reasonable and necessary. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 490 n.9 (Tex. 2019).

Note that, while a trial court may take judicial notice of reasonable and necessary legal fees, the court may not act as a rubber stamp for what an attorney requests in fees. Toledo v. KBMT Operating Co., LLC, 581 S.W.3d 324, 330 (Tex. App.—Beaumont 2019, pet. filed). As noted at section 31.2:5 above, the fees cannot be exces­sive but must be fair and moderate in light of the amount in controversy.

The attorney should be cautioned that, if there is testimony as to an hourly rate and a total sum, then the attorney has elected to use the lodestar method and must provide proper proof under the lodestar test for an award of attorney’s fees. See City of Laredo v. Montano, 414 S.W.3d 731, 736–37 (Tex. 2013) (per curiam) (senior attor­ney’s fees reversed for failure to keep billing records, but associate’s fees upheld where asso­ciate kept contemporaneous records).

Statutes providing for claims other than those enumerated in Tex. Civ. Prac. & Rem. Code § 38.001, such as the Texas Deceptive Trade Practices–Consumer Protection Act (DTPA), the Texas Declaratory Judgment Act (TDJA), or the Texas Theft Liability Act (TTLA), are not gov­erned by Tex. Civ. Prac. & Rem. Code § 38.004. Consequently, courts may not take judicial notice of reasonable and necessary attorney’s fees for those claims. See Rohrmoos Venture, 578 S.W.3d at 490 n.9.

§ 31.12Controverting Attorney’s Fees Evidence

§ 31.12:1Need to Controvert

When defending against a claim for attorney’s fees, it is good practice to show contrary evi­dence or show contradictions within the movant’s evidence. See Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 512 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). (“Conse­quences follow from the Haden’s and the com­pany’s lack of response to Sacks’s motion for traditional summary judgment seeking attor­ney’s fees pursuant to chapter 38 of the Civil Practice and Remedies Code.”).

In Haden, counsel requesting fees provided no information about hours worked or hourly rate but gave the court only a list of certain tasks per­formed. Haden, 332 S.W.3d at 510–11. The court held that counsel’s affidavit complied with the requirements of Tex. R. Civ. P. 166a(c), because although the facts in the affidavit “could have been readily controverted, but were not, . . . we conclude that the affidavit constitutes legally competent evidence that the $75,887.50 sought . . . was both reasonable and necessary.” Haden, 332 S.W.3d at 514–15.

As noted in Haden:

Well-settled law recognizes that the affidavit of the attorney representing a claimant constitutes expert testi­mony that will support an award of attorney’s fees in a summary judg­ment proceeding. See [Tesoro Petro­leum Corp. v. Coastal Refining & Marketing, Inc., 754 S.W.2d 764, 767 (Tex. App.—Houston [1st Dist.] 1988, writ denied)]. Sacks is an inter­ested party in this lawsuit, but that status does not defeat his affidavit. See TEX. R. CIV. P. 166a(c) (“A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness . . . if the evidence is clear, positive, direct, otherwise cred­ible and free from contradictions and inconsistencies, and could have been readily controverted.”) (emphasis added); see [Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999)].

Haden, 332 S.W.3d at 513.

In 2017 the Fort Worth court of appeals simi­larly found the failure to controvert fatal to the defendant’s attack on the attorney’s fee award. Huey-You v. Huey-You, No. 02-16-00332-CV, 2017 WL 4053943, at *3 (Tex. App.—Fort Worth Sept. 14, 2017, no pet.) (mem. op.). But at least one court has held that a party may attack the legal sufficiency of the attorney’s fee evidence for the first time on appeal without having filed a controverting affidavit. See Auz v. Cisneros, 477 S.W.3d 355, 359 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

§ 31.12:2How to Controvert

Tesoro Petroleum Corp. v. Coastal Refining & Marketing, Inc., demonstrates the proper way to controvert or contest a fee request. 754 S.W.2d 764, 766–67 (Tex. App.—Houston [1st Dist.] 1988, no writ). When attacking a fee request as unreasonable, one must establish a firm basis for the controverting opinion. In Tesoro Petroleum, the nonmovant’s counsel testified—

1.as to his own experience as an attor­ney;

2.that he was personally involved in the case and knew what had happened in the case;

3.that there was no itemized bill to reflect the work done;

4.that the hours worked were not shown;

5.that the movant’s hourly rate was not shown; and

6.that the movant’s fees were unreason­able under the circumstances.

Tesoro Petroleum, 754 S.W.2d at 766. When possible, controverting testimony should also include evidence as to a contrary reasonable number of hours worked and contrary reason­able rates, as well as show redundancies, “wolf packing,” or other examples of poor billing practices. It is best for the nonmovant to be as specific as possible in opposing the movant’s fee application. The attorney must describe the basis for the contrary opinion and not merely testify that the movant’s requested fees are unreasonable. See Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373 (Tex. App.—San Antonio 1999, pet denied).

Showing inconsistencies in billing records or examples of overbilling or unnecessary billings, such as having two or more attorneys attend a hearing or deposition, is another way to attack a movant’s affidavit. See Pavlow v. Jensen, No. 14-04-00750-CV, 2005 WL 3310015, at *6 (Tex. App.—Houston [14th Dist.] Dec. 8, 2005, no pet.) (mem. op.) (controverting affidavit alleging unreasonableness of movant’s fee request not competent summary judgment evi­dence because it contained no factual support) (citing Houston v. Houston, No. 13-02-00142-CV, 2004 WL 351850, at *5 (Tex. App.—Cor­pus Christi–Edinburg Feb. 26, 2004, no pet.) (mem. op.) (nonmovant failed to state that movant’s hourly fee was unreasonable and did not identify unnecessary billable time)). Oppos­ing counsel may use his own time records as a basis to contest the attorney’s fee request. See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 766 (Tex. 2012) (Hecht, J., concurring).

§ 31.12:3How Not to Controvert

The court in Pavlow found the following affida­vit inadequate to controvert the plaintiff’s evi­dence. The affidavit, in its entirety, read:

I, [attorney’s name], am a capable person to make this affidavit. I have never been convicted of a felony in Texas or in any other state. I am licensed to practice law in the state of Texas. I am in good standing with the State Bar. I have reviewed the Plain­tiff’s pleadings and request for attor­ney[’]s fees. The attorney[’]s fees requested are not reasonable nor [sic] necessary.

Pavlow v. Jensen, No. 14-04-00750-CV, 2005 WL 3310015, at *5 (Tex. App.—Houston [14th Dist.] Dec. 8, 2005, no pet.) (mem. op.). The court found this affidavit to be a mere legal con­clusion because it contained no factual basis for the attorney’s opinion. Pavlow, 2005 WL 3310015, at *6 (citing Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373 (Tex. App.—San Antonio 1999, pet. denied) (“An affidavit filed by non-movant’s counsel that simply criticizes the fees sought by the movant as unreasonable without setting forth the affi­ant’s qualifications or basis for his opinion will not be sufficient to defeat summary judg­ment.”)).

§ 31.13Duty to Segregate Fees

If multiple causes of action are brought, some of which permit recovery of attorney’s fees while others do not (e.g., breach of contract versus fraud), the attorney must be cognizant of the duty to segregate the attorney’s fees related to the causes of action for which attorney’s fees are recoverable from those in which fees are not recoverable. Evidence of segregation may be presented by specifying on the attorney’s invoices which times were attributable to which causes of action. State Farm Lloyds v. Hanson, 500 S.W.3d 84, 102 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); see also Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006) (detailing evidence sufficient to show segregation). Alternatively, the attorney may testify as to what percentage of the time worked on the case would have been necessary even if the nonrecoverable claim had not been asserted. Chapa, 212 S.W.3d at 314.

In 1991, the Texas Supreme Court recognized an exception to the requirement to segregate fees. In Stewart Title Guaranty Co. v. Sterling, the court held that fees do not need to be segre­gated if the claims arose from the same transac­tion and were “so interrelated that their prosecution or defense entails proof or denial of essentially the same facts.” 822 S.W.2d 1, 11–12 (Tex. 1991).

The supreme court further modified the “interre­lated rule” in Chapa, stating:

Accordingly, we reaffirm the rule that if any attorney’s fees relate solely to a claim for which such fees are unre­coverable, a claimant must segregate recoverable from unrecoverable fees. Intertwined facts do not make tort fees recoverable; it is only when dis­crete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated. We modify Sterling to that extent.

Chapa, 212 S.W.3d at 313–14. This new requirement emphasizes that segregation must be based on the legal services provided or work done, not the facts of the case. Furthermore, the duty to segregate relates “solely to a claim for which . . . fees are unrecoverable.” Chapa, 212 S.W.3d at 313–14.

Further, the court explained:

Requests for standard disclosures, proof of background facts, deposi­tions of the primary actors, discovery motions and hearings, voir dire of the jury, and a host of other services may be necessary whether a claim is filed alone or with others. To the extent such services would have been incurred on a recoverable claim alone, they are not disallowed simply because they do double service.

Chapa, 212 S.W.3d at 313.

The attorney is not required to keep two time records. As noted, the attorney may provide a percentage of the hours worked advancing the claim on which attorney’s fees may be recov­ered. Chapa, 212 S.W.3d at 314.

The court in Chapa also clarified that the work performed to overcome affirmative defenses on a recoverable claim does not need to be segre­gated. “To prevail on a contract claim,” wrote the court, “a party must overcome any and all affirmative defenses (such as limitations, res judicata, or prior material breach), and the opposing party who raises them should not be allowed to suggest to the jury that overcoming those defenses was unnecessary.” Finally, if seg­regation is not properly made, the proper rem­edy is remand, not a denial of attorney’s fees completely. Chapa, 212 S.W.3d at 314.

Courts have also permitted evidence of segrega­tion based on testimony as to a percentage or dollar amount for work done on claims for which attorney’s fees are not recoverable. See Gluck v. Hadlock, No. 02-09-00411-CV, 2011 WL 944439, at *6 (Tex. App.—Fort Worth Mar. 17, 2011, no pet.).

The law regarding when to object is inconsis­tent. A docket control order may set a deadline to designate expert witnesses, produce expert reports, and object to expert witnesses. See also Tex. R. Civ. P. 194. Absent a docket control order, opportunities to object to the lack of seg­regation include—

1.when the attorney’s fees evidence is offered;

2.at a jury charge conference;

3.before the trial court rules or the issue is presented to the trier of fact; and

4.in a postjudgment motion.

The best practice is to object timely pursuant to a docket control order or otherwise before the case is submitted to the fact finder. See Home Comfortable Supplies, Inc. v. Cooper, 544 S.W.3d 899, 908–11 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (citing various cases but concluding that objecting before the case is submitted to the fact finder preserves the error of failing to segregate).

§ 31.14Discovery Sanctions

Awards of attorney’s fees for discovery abuse are discussed at sections 18.83 and 18.84 in this manual.

§ 31.15Attorney’s Fees for Postjudgment Collection Efforts

The availability of attorney’s fees for postjudg­ment collection efforts depends on the type of action. See section 27.66 in this manual regard­ing attorney’s fees awarded to the garnishee’s counsel in postjudgment garnishment and sec­tion 27.92 regarding attorney’s fees in turnover actions.

§ 31.16Attorney’s Fees and Default Judgment

If attorney’s fees are sought other than under chapter 38 of the Texas Civil Practice and Rem­edies Code, some proof of attorney’s fees, either by affidavit or by live testimony, will be needed to sustain an award of attorney’s fees for a default judgment. Nettles v. Del Lingco of Hous­ton, 638 S.W.2d 633, 635–36 (Tex. App.—El Paso 1982, no writ). If hourly fees are sought, the fees are best proved by attorney time records. Proof of contemporaneous time records may be made by the attorney’s affidavit with the attorney’s itemized bills attached as an exhibit or with the detailed time descriptions by date, description, and hours per item set out in the affidavit. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 502, 505 (Tex. 2019). If judgment is sought under Tex. Civ. Prac. & Rem. Code § 38.001, the court can take judicial notice of the usual and customary attorney’s fees and the contents of the case file without receiving further evidence. Tex. Civ. Prac. & Rem. Code § 38.004. In such a case, there is a rebuttable presumption that the usual and customary fees are reasonable and neces­sary. Rohrmoos Venture, 578 S.W.3d at 490 n.9. See section 31.11 above for discussion of judi­cial notice of attorney’s fees.

§ 31.17Attorney’s Fees and Sanctions

The Texas Supreme Court applied the Rohr­moos Venture opinion’s requirement for time records and compliance with the lodestar method in the sanctions context in Nath v. Texas Children’s Hospital, 576 S.W.3d 707, 710 (Tex. 2019) (per curiam). Citing Rohrmoos Venture, the court pointed out that a party seeking a fee award must prove the reasonableness and neces­sity of the requested fees in all fee-shifting situa­tions. Nath, 576 S.W.3d at 710 (citing Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 492 (Tex. 2019)).

§ 31.18Appellate Fees

The trial court’s award of attorney’s fees may include appellate attorney’s fees if there is evi­dence of the reasonableness of fees for appellate work. The reasonableness of attorney’s fees is a fact issue that must be passed on by the trier of fact. The appellate court may not initiate an award for work done in the appellate process, because doing so would involve the exercise of original rather than appellate jurisdiction. Inter­national Security Life Insurance Co. v. Spray, 468 S.W.2d 347, 349 (Tex. 1971). An award of appellate fees is a matter of discretion for the trier of fact, not a requirement. Hunsucker v. Fustock, 238 S.W.3d 421, 431 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Neal v. SMC Corp., 99 S.W.3d 813, 818 (Tex. App.—Dallas 2003, no pet.)).

A general pleading seeking recovery of “reason­able attorney’s fees” has been held to authorize the award of appellate attorney’s fees. Superior Ironworks, Inc. v. Roll Form Products, Inc., 789 S.W.2d 430, 431 (Tex. App.—Houston [1st Dist.] 1990, no writ); Ledisco Financial Ser­vices, Inc. v. Viracola, 533 S.W.2d 951, 958 (Tex. App.—Texarkana 1976, no writ).

The principles for supporting an award of appel­late fees appear to be identical to those of trial fees. See generally Hunsucker, 238 S.W.3d at 431–32. Rohrmoos Venture did not address the issue of appellate fees. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019). Earlier opinions have been incon­sistent. For example, in 2013, one court applied El Apple I to overturn a conditional appellate attorney’s fee award for not being supported by the lodestar method. Sentinel Integrity Solu­tions, Inc. v. Mistras Group, Inc., 414 S.W.3d 911, 930 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). In 2016, the lump sum method of proving appellate fees by stating a dollar amount for each appellate stage was approved. See Lawry v. Pecan Plantation Owners Ass’n, No. 02-15-00079-CV, 2016 WL 4395777, at *8–9 (Tex. App.—Fort Worth Aug. 18, 2016, no pet.) (mem. op.).

If the testimony for attorney’s fees is uncontro­verted and the opposing party had “the means and opportunity of disproving the testimony and fails to do so, the testimony will be taken as true as a matter of law.” Hunsucker, 238 S.W.3d at 431 (citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (per curiam)). Furthermore, in the face of uncontro­verted evidence, an award of zero fees on appeal is an abuse of discretion. Hunsucker, 238 S.W.3d at 431–32 (citing Ragsdale, 801 S.W.2d at 882); Lee v. Perez, 120 S.W.3d 463, 469–70 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

Appellate fee awards should be conditioned on success at the appellate level, though if they are not, courts may reform a judgment to make them conditional on success, so this is not the basis for a reversible error. An award of appellate attorney’s fees may be couched in remittitur lan­guage to avoid objections of lack of finality, lack of definiteness, and the existence of a condi­tional judgment. Failing v. Equity Management Corp., 674 S.W.2d 906, 909 (Tex. App.—Hous­ton [1st Dist.] 1984, no writ); see also Goebel v. Brandley, 76 S.W.3d 652, 658–59 (Tex. App.—Houston [14th Dist.] 2002, no pet.), disapproved on other grounds by Martin v. Amerman, 133 S.W.3d 262 (Tex. 2004) (remittitur language permissible). See Form 20-6 in this manual for sample remittitur language. Alternatively and more commonly, the judgment may recite spe­cific amounts to be awarded in the event of an unsuccessful appeal to the court of appeals and the supreme court by the opposing party. See Vaughn v. DAP Financial Services, Inc., 982 S.W.2d 1, 9 (Tex. App.—Houston [1st Dist.] 1997, no pet.); Pao v. Brays Village East Home­owners Ass’n, 905 S.W.2d 35, 38–39 (Tex. App.—Houston [1st Dist.] 1995, no writ).

§ 31.19Paralegal Fees

Texas law allows for recovery of paralegal fees, but the tasks must be described in sufficient detail for a court to determine if the work is sub­stantive legal work or clerical work. See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012); Gill Savings Ass’n v. International Supply Co., 759 S.W.2d 697, 705 (Tex. App.—Dallas 1988, writ denied); Clary Corp. v. Smith, 949 S.W.2d 452, 469–70 (Tex. App.—Forth Worth 1997, pet. denied). According to El Apple I, an award for paralegal or legal-assistant work requires testimony of (1) the qualifications of the legal assistant to perform substantive legal work; (2) that the legal assistant performed sub­stantive legal work under the direction and supervision of an attorney; (3) the nature of the legal work performed; (4) the legal assistant’s hourly rate; and (5) the number of hours expended by the legal assistant. El Apple I, Ltd., 370 S.W.3d at 763.