Attorney's Fee Litigation | Case Law from Houston Courts of Appeals

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based on contract | Texas Supreme Court fee factors |

RECENT HOUSTON APPEALS COURT OPINIONS
INVOLVING ATTORNEY FEE CLAIMS AND DISPUTES

Hilburn v. Providian Holdings, Inc. (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Taft)
(interpretation of easement agreement, untimely designation of expert witness for attorneys fees cured;
opportunity to take deposition not take, no error, no harm)
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Chief Justice Radack, Justices Taft and Alcala
01-06-00961-CV Barbara Hilburn v. Providian Holdings, Inc.
Appeal from 189th District Court of Harris County
Trial Court Judge: Hon. William R. Burke. Jr.

Williams v. Jackson (Tex.App.- Houston [1st Dist.] Oct. 9, 2008)(Radack)
(attorney fee dispute, sworn account suit, no duress, no excuse to payment of attorney's fees per agreement)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00850-CV Charlie C. Williams v. Freddie N. Jackson
Appeal from Co Civil Ct at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd

Anglo-D utch Petroleum International, Inc. v. Greenberg Peden, PC (Tex.App.- Houston [1st Dist.] Aug 26, 2008)
(Boyce) (attorney-client fee dispute, contingency fee agreement)
AFFIRMED: Opinion by Justice Boyce
Before Justices Hudson, Fowler and Boyce)
14-07-00343-CV        Anglo-Dutch Petroleum International, Inc. and Anglo-Dutch (TENGE) L.L.C. v. Greenberg
Peden, P.C. and Gerard J. Swonke Appeal from 61st District Court of Harris County
Trial Court Judge: John J. Donovan

CA Partners v. Marshall Spears (Tex.App.- Houston [14th Dist.] Aug. 21, 2008)(Fowler)
(debt collection, deed of trust, DTPA, DJA, attorneys fees reversed and remanded)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler
Before Justices Fowler, Seymore and Guzman
14-07-00057-CV CA Partners v. Marshall Spears and CitiFinancial, Inc.
Appeal from 212th District Court of Galveston County
Trial Court Judge: Susan Elizabeth Criss

American International Industries, Inc. v. Surgicare (Tex.App.- Houston [14th Dist.] July 17, 2008)(Keyes)
(indemnification for attorney's fees, establishing reasonable and necessary amount of fees)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Chief Justice Radack, Justices Keyes and Higley)
01-07-00116-CV        American International Industries, Inc. v. Surgicare, Inc.
Appeal from 344th District Court of Chambers County

Awoniyi v. Mcwilliams, MD (Tex.App.- Houston [14th Dist.] June 10, 2008)(Brown) (HCLC, untimely expert report,
attorney's fees award remanded, failure to segregate recoverable an unrecoverable)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Brown
Before Justices Brock Yates, Guzman and Brown 14-07-00071-CV
Oluwakemi Awoniyi & Quadri Ige v. Robert Barton McWilliams., M.D. and the Womans Hospital of Texas
Appeal from 152nd District Court of Harris County
Trial Court Judge: Kenneth Price Wise

In re Heather Sartain (Tex.App.- Houston [1st Dist.] Apr. 3, 2008)(Nuchia) (family law, temporary order for
attorneys fees, mandamus granted, divorce, SAPCR, order granting interim attorney's fees lifted]
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Nuchia
Before Justices Nuchia, Hanks and Higley
01-07-00920-CV In re Heather Sartain
Appeal from 306th District Court of Galveston County
Trial Court Judge: Hon. Janis L. Yarbrough

Koval v. Kirkland Contractors, Inc. (Tex.App,- Houston [1st Dist.] Feb. 15, 2008)(Davie Wilson)
(res judicata, attorney's fees)
AFFIRM TC JUDGMENT: Opinion by Judge Wilson
Before Judge Wilson, Justices Alcala and Hanks
01-06-00067-CV Linda Koval v. Henry Kirkland Contractors, Inc.
Appeal from Probate Court No 3 of Harris County (Judge Hon. Rory R. Olsen)

In re Akin Gump Strauss Hauer & Feld LLP (Tex.App.- Houston [14th Dist.] Feb. 21, 2008)(Frost)
(attorney-client fee dispute, intellectual property representation)
MOTION OR WRIT DENIED: Opinion by Justice Frost
Before Justices Anderson, Fowler and Frost
14-07-00402-CV In Re: Akin Gump Strauss Hauer & Feld LLP, Et Al
Appeal from 11th District Court of Harris County (Judge Mark Davidson)

City of Galveston, Texas, and BP v. Saint-Paul (Tex.App.- Houston [1st Dist.] Feb. 14, 2008)(Alcala) (Open
Meetings Act, standing, attorney's fees)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Alcala
(Before Chief Justice Radack, Justices Jennings and Alcala)
01-06-00580-CV The City of Galveston, Texas; BP Energy Company, Intervenor; Board of Trustees of the
Galveston Wharves v. Nancy Saint-Paul--Appeal from 122nd District Court of Galveston County
Section 551.142 of the Government Code provides that a prevailing party in a Texas Open Meetings Act suit may
recover its fees and costs. Tex. Gov’t Code Ann. § 551.142 (Vernon 2004). Whether to make an award of fees
and costs under the Act falls within the trial court’s sound discretion. Bell, 994 S.W.2d at 867. Here, the trial court
granted the relief sought by Saint-Paul against the City, but ordered that each party bear its own attorney’s fees
and costs. Because we have reversed the trial court’s judgment concerning the Act as against the City, we
remand for the trial court to exercise its discretion whether to award attorney’s fees to the City. See Odessa Tex.
Sheriff’s Posse, 215 S.W.3d at 474 (remanding for attorney’s fees issue when trial court did not have chance to
exercise its discretion under Act); Moosavideen v. Garrett, No. 01-06-00002-CV, 2007 WL 2130566, at *8 (Tex.
App.—Houston [1st Dist.] July 26, 2007, no pet. h.) (remanding to trial court to reconsider attorney’s fees issue
when trial court’s declaratory judgment was reversed). We sustain the City’s second issue.

Koval v. Kirkland Contractors, Inc. (Tex.App,- Houston [1st Dist.] Feb. 15, 2008)(Wilson)
(res judicata, attorney's fees)
AFFIRM TC JUDGMENT: Opinion by Judge Wilson
Before Judge Wilson, Justices Alcala and Hanks
01-06-00067-CV Linda Koval v. Henry Kirkland Contractors, Inc.
Appeal from Probate Court No 3 of Harris County (Judge Hon. Rory R. Olsen)

Yeh v. MacOugall (Tex.App.- Houston [1st Dist.] Jan. 17, 2008)(Alcala)(breach of contract, counterclaim,
attorney's fees, prevailing party)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-06-00509-CV Peter J. Yeh v. David J. MacDougall, D.O., P.A. d/b/a Neurosurgical Association of Houston
Appeal from 333rd District Court of Harris County (Hon. Joseph Halbach)

Alleged Referral-Fee Agreement Not Enforceable - Summary Judgment for Defendant Affirmed
Valentine v. Cunningham (Tex.App.- Houston [1st Dist.] Jan. 17, 2008)(Jennings)
(attorney referral fee agreement, no enforceable contract, BoC)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Nuchia, Jennings and Keyes
01-07-00054-CV Michael J. Valentine v. Lloyd R. Cunningham, Jr., and Cunningham & Associates, P.C.
Appeal from 151st District Court of Harris County (Hon. Caroline Baker)

Full recovery of attorney fees in FLSA case denied - appeals court affirms
Vernon v. CAC Distributors, Inc. (Tex.App.- Houston [1st Dist.] Aug. 9, 2007)(Alcala)(FLSA attorneys fees)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Judge Price, Justices Alcala and Hanks
01-06-00009-CV        Donna H. Vernon v. Time Energy Systems of the South-West n/k/a CAD Distributors, Inc.
Appeal from 234th District Court of Harris County (Hon. Reece Rondon)

Zero attorneys fees award stands
Rosenblatt v. Freedom Life Ins. Co. (Tex..App.- Houston [1st Dist.] Aug. 2, 2007(Radack)(attorneys fees)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Jennings and Bland
01-05-01107-CV        Michael Rosenblatt v. Freedom Life Insurance Company of America; Ascent Assurance, Inc., and National Care
Marketing, Inc.
Appeal from 295th District Court of Harris County (Hon. Tracy Christopher)
This is a single-issue appeal premised on a partial reporter's record. See Tex. R. App. P. 34.6(c)(1). Appellant, Michael Rosenblatt,
challenges denial of his motion to set aside jury findings that resulted in no recovery on Rosenblatt's request for an award of
attorneys' fees. Rosenblatt contends that an award of $500,000 in attorneys' fees was proper, notwithstanding the jury's verdict, and
contends that we are compelled to render judgment in his favor as a matter of law, because (1) he was statutorily entitled to
attorneys' fees and (2) the evidence supporting his request for attorneys' fees is uncontroverted. See Tex. R. Civ. P. 301 (authorizing
judgment notwithstanding verdict). Because Rosenblatt seeks only rendition, and not a remand for trial, we conclude there is no
reversible error and affirm. * * *
Because the evidence presented in support of Rosenblatt's claim for attorneys' fees is not conclusive as a matter of law and thus
precludes that relief, we cannot render the judgment that Rosenblatt seeks. See McMillin, 180 S.W.3d at 211 ("We cannot render
judgment . . . because the evidence is not conclusive."). Though our sister court reversed and ordered a remand in McMillin, the
appellant there had alternatively requested that relief. See id. at 210-11 (stating that sustaining legal-sufficiency issue removed
need to address factual sufficiency of evidence). That alternative is not presented here.
Accordingly, we overrule Rosenblatt's sole issue.

Buhman v. James Leigh McGaughy (Tex.App. - Houston [14th Dist.] Jul. 24, 2007)(Guzman)(partnership, oral
contract, attorneys' fees, conversion)
Opinion by Justice Guzman
Before Justices Frost, Seymore and Guzman
14-05-01215-CV Larry A. Buhman v. James Leigh McGaughy
Appeal from 127th District Court of Harris County (Judge Sharolyn P. Wood) - Reversed and Remanded

Dilston House Condominium Association v. White (Tex.App.- Houston [14th Dist.] May 19, 2007)(Mirabal)
(homeowner law, condominium declarations, bylaws, attorneys fees)
AFFIRMED: Opinion by Justice Mirabal
Before Justices Frost and Mirabal
14-05-00960-CV Dilston House Condominium Association v. Dianne White
Appeal from County Civil Court at Law No 1 of Harris County (Hon. R. Jack Cagle)

Yasuda Fire and Marine Insurance Company of America v. Criaco (Tex.App.- Houston [14th Dist.] Jun. 7, 2007)
(Frost)(auto-PI, UIM coverage, workers comp, standing of law firm to pursue attorneys fees claim)

Sap Trading, Inc v. Mohammed Sohani (Tex.App.- Houston [14th Dist.] Jun. 5, 2007)(Edelman)
[attorney's fees, postjudgment interest]
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Edelman
Before Justices Brock Yates, Edelman and Seymore
14-06-00641-CV Sap Trading, Inc v. Mohammed Sohani and AAA King Corp d/b/a King Importer and Wholesaler--
Appeal from County Civil Court at Law No 2 of Harris County (Judge Gary Michael Block)

Stevens v. The Anatolian Shepherd Dog Club of America, Inc. (Tex.App.- Houston [14th Dist.] Jun. 5, 2007)
(Fowler)(association law, autonomy voluntary associations, attorney's fees, unjust enrichment, refund)
AFFIRMED: Opinion by Justice Fowler
Before Chief Justice Hedges, Justices Fowler and Edelman
14-06-00367-CV Rhea C. Stevens v. The Anatolian Shepherd Dog Club of America, Inc.
Appeal from County Court at Law of Austin County (Judge Gladys M. Oakley)

Travelers Indemnity Co of Conn. v. Espinosa (Tex.App.- Houston [1st Dist.] May 31, 2007)(Hanks)(workers comp,
atty fees) (workers compensation, jurisdiction, atttorney's fees)
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Hanks
Before Justices Nuchia, Hanks and Bland
01-05-00836-CV Travelers Indemnity Company of Connecticut v. Jesus Espinosa
Appeal from 61st District Court of Harris County (Hon. John Donovan)An unconditional award of an appellant's
appellate attorney's fees is improper. Id. at 607-08. Therefore, the trial court must condition the award of
appellate attorney's fees upon the appellant's unsuccessful appeal. Id. at 607. However, an unconditional award
of appellate attorney's fees does not require reversal; instead, we may modify a trial court's judgment to make the
award of appellate attorney's fees contingent upon the receiving party's success on appeal. Pao v. Brays Vill. E.
Homeowners Ass'n, 905 S.W.2d 35, 38-39 (Tex. App.--Houston [1st Dist.] 1995, no writ). We sustain Travelers'
fourth issue and reform the judgment.")

Hardy v. Mann Frankfort Stein & Lipp (Tex.App.- Houston [1st Dist.] May 3, 2007)(Alcala) (attorneys fees)
We conclude that, in accordance with the express language of the agreement showing that the parties' intent was
to allow unenforceable provisions of the agreement to be severed, the parties retained their obligations under the
remainder of the agreement, with the exclusion of the invalid client-purchase provisions. We hold that the trial
court erred by declining to award any attorney's fees to Fielding under the terms of the employment agreement
that provided that in "the event of litigation between the parties hereto arising out of or connected with this
Agreement, the prevailing party shall be entitled to recover . . . actual attorneys fees." We therefore remand to the
trial court for determination of the amount of attorney's fees to be awarded to Fielding.

McLean Bowers v. Speer Taylor (Tex.App. - Houston [1st Dist.] May 3, 2007)(Alcala)
(UDJA, deed, mineral estate dispute, fee simple ownership, attorneys fees)

Bowers contends on appeal that declaratory judgment is not the appropriate vehicle for Taylor's lawsuit. They
assert that the suit is in the nature of a trespass to try title action, and therefore the trial court erred by awarding
attorney's fees under the Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009. In the
alternative, Bowers asserts that because the trial court's declaratory judgment was error, its award of attorney's
fees was not equitable or just, and therefore was error. . . .

Following a hearing, the trial court issued findings of fact and conclusions of law that stated that Taylor was
entitled to attorney's fees because "Plaintiffs prevailed on their request for a declaratory judgment concerning the
meaning and legal effect of the Deed's terms." Having determined that the trial court erred by granting summary
judgment in favor of Taylor in the declaratory judgment action, we reverse and remand the trial court's award of
attorney's fees to Taylor that were entered in accordance with that declaratory judgment for further proceedings
not inconsistent with this opinion.
Conclusion. We hold that summary judgment was improperly granted by rendering a declaratory judgment that
Bowers did not receive a fee simple interest in the mineral estate. We reverse the judgment of the trial court and
remand for further proceedings not inconsistent with this opinion

Travelers Indemnity Co of Conn. v. Espinosa (Tex.App.- Houston [1st Dist.] May 31, 2007)(Hanks)
(workers comp, atty fees, jurisdiction, attorney's fees]
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Hanks
Before Justices Nuchia, Hanks and Bland
01-05-00836-CV Travelers Indemnity Company of Connecticut v. Jesus Espinosa
Appeal from 61st District Court of Harris County (Judge John Donovan)

Oko v. Oguntope (Tex.App.- Houston [1st Dist.] Mar. 22, 2007)(Taft) (fraud, attorney's fees)

Haden v. Sacks (Tex.App.- Houston [1st Dist.] Mar 8, 2007, pet. granted)(Radack)
(breach of contract, BoC, attorney fees agreement dispute) Justice Alcala wrote separately in Haden v. Sacks

2007-2008 SUPREME COURT OPINIONS ON ATTORNEYS' FEES

Parol evidence rule bars modification of written fee agreement

David J. Sacks, PC v. McIntre Haden, No. 07-0472 (Tex. July 11, 2008)(per curiam) (attorney's fee collection suit,
hourly fee contract, parol evidence rule bars oral modification of fee arrangements)
Sacks , PC v. Haden, No. 07-0487 (Tex. July 11, 2008)(per curiam) (turnover order to enforce judgment in
attorney's fees collection case)

Attorney fee issue remanded for redetermination after substantial reduction of damage award

Bossier Chrysler-Dodge II, Inc. v. Rauschenberg, No. 06-0874 (Tex. Nov. 2, 2007)(per curiam)(attorney's fees
remand)
Question presented: Whether the case should be remanded for a new trial on attorney’s fees. A divided court
of appeals affirmed the attorney’s fees award although it reduced the trial court’s damage award by eighty-seven
percent. 201 S.W.3d 787. The issue of attorney’s fees should ordinarily be retried under these circumstances
unless the appellate court is “reasonably certain that the jury was not significantly influenced by the erroneous
[damage award].” Barker v. Eckman, 213 S.W.3d 306 (Tex. 2006). Barker issued after the court of appeals’
opinion in this case, and thus the court of appeals did not have the benefit of that decision. Accordingly, without
hearing oral argument pursuant to Rule 59.1 of the Texas Rules of Appellate Procedure, the supreme court grant
the petition for review and reverses that part of the court of appeals’ judgment regarding attorney’s fees, and
remand the case to the court of appeals for its consideration of the attorney’s fees issue in light of Barker.

Supreme Court remands attorney fee claim for segregation

A.G. Edwards & Sons, Inc . v. Beyer ., No. 05-0580 (Tex. Sep. 28, 2007)(Wainwright)(financial services, breach of
contract, joint account with right of survivorship, probate code, attorney's fees)
("The second issue presented in this petition for review is whether Alicia was required to segregate attorney’s fees
between her breach of contract and tort causes of action. In Tony Gullo Motors v. Chapa, we recently re-affirmed
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.” 212 S.W.3d 299, 313 (Tex. 2006). It is only when legal services
advance both recoverable and unrecoverable claims that the services are so intertwined that the associated fees
need not be segregated. Id. at 313–14. We reverse the judgment of the court of appeals in part and remand the
case for a new trial on attorney’s fees. Id. at 314 (“Unsegregated attorney’s fees for the entire case are some
evidence of what the segregated amount should be.”). . . .
We affirm in part and reverse in part the judgment of the court of appeals and remand the case to the trial court
for a new trial on attorney’s fees.")

Supreme Court declines invitation to allow for two trials on attorneys fees when one will do; reiterates
requirement to segregate fees, but recognizes exception for intertwined counterclaims that require
the resolution of the same factual dispute

Varner v. Cardenas, No. 06-0212 (Tex. Mar. 2, 2007)(per curiam)
Also see Tony Gullo Motors v. Chapa, No. 04-0961 (Tex. Dec. 22, 2006)(Justice Brister)(litigants must segregate
recoverable from unrecoverable attorney's fees in all cases)
Case type: suit on note, real estate law, title defect, suing title insurance company and its agent
Key legal terms: attorney fee segregation, other claims, claims against third parties, counterclaims, breach of
contract, mutual mistake, reformation of deed, shortfall in acreage
No prejudgment interest on entire balance of note sued on in the absence of proof of date of acceleration

Supreme Court orders new trial on attorney's fees following reduction of damages by the court of
appeals

Young v. Qualls, No. 05-1091 (Tex. May 4, 2007)(per curiam)(attorneys fees)
Case type: suit for breach of partnership agreement for real estate development. Court of appeals affirmed jury
finding of liability, but suggested remittiture regarding amount of damages. Supreme Court remands to trial court
for new trial on attorney's fees in accordance with Barker v. Eckman, 213 S.W.3d 306 (Tex. 2006). Court reasons
that in consideration of results obtained, i.e. the substantial reduction of damages as a result of the appeal, trial
court may have awarded less. Court rejects contention that right to retry attorneys fees was waived on appeal.

2006 TEXAS SUPREME COURT OPINIONS ON ATTORNEY'S FEES

Fee Contract Provision Requiring Payment of Attorney's Contingency Interest upon premature
termination of representation found unconscionable and against public policy

Hoover Slovacek v. Walton, No. 04-1004 (Tex. Nov. 3, 2006)(Jefferson)
(attorneys fees, contingent fees)
Justice Hecht delivered a dissenting opinion in Slovacek v. Walton