Affirmed in=20
Part and Reversed and Remanded in Part and Memorandum Majority and =
Concurring =
Opinions filed=20
October 2, 2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-00921-CV
____________
ANGLO-DUTCH=20
PETROLEUM INTERNATIONAL, INC. AND
ANGLO-DUTCH (TENGE) =
LLC,=20
Appellants
V.
LITTLEMILL=20
LIMITED, =
Appellee
On Appeal from the =
152nd District Court
Harris County, =
Texas
Trial Court Cause =
No. 2004-60996
M E M O R=20
A N D U M C O N C U R R I N G O P I N I O=20
N
I agree with the =
reasoning used=20
by the majority in all respects except for its discussion of the =
affidavit=20
of Fred Hagans regarding attorney=3Ds fees. Rather =
than hold=20
that the affidavit of Mr. Hagans was internally inconsistent, I =
would hold=20
that it failed to prove that the tort and contract claims were=20
inextricably intertwined so that all legal fees were =
recoverable. =20
Mr. Hagans said the following to prove that the claims were =
inextricably=20
intertwined:
This case involves =
claims of=20
breach of contract, claims for declaratory relief and other claims =
arising=20
out of the same transaction at issue in connection with=20
Littlemill=3Ds breach of contract =
claims=20
such that the prosecution of all of these claims entails proof or =
denial=20
of essentially the same facts. All of Littlemill=3Ds claims are, in my =
opinion,=20
intertwined to the point of being inseparable and therefore are=20
Ainextricably=20
intertwined.@
In Tony Gullo =
Motors I, L.P.=20
v. Chapa, 212 S.W.3d 299 (Tex. 2006), the Texas Supreme Court =
rejected=20
the idea that a litigant could prove that claims were inextricably =
intertwined merely by stating that the claims were dependent on =
the same=20
set of facts. There, the Court acknowledged that =
Chapa=3Ds fraud, contract and =
DTPA=20
claims were all dependent upon the same set of facts or =
circumstances, yet=20
went on to state, Athat does not mean =
they all=20
required the same research, discovery, proof, or legal=20
expertise.@ Id. at =
313.=20
The Court continued with the following:
Nor are unrecoverable legal fees =
rendered=20
recoverable merely because they are nominal; there is no such =
exception in=20
any contract, statute, or Athe American Rule.@ To the extent Sterling =
suggested=20
that a common set of underlying facts necessarily made all claims =
arising=20
therefrom Ainseparable@ and all legal fees recoverable, =
it went too=20
far.
Id. (citing Stewart =
Title Guar.=20
Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991)). =
The Court=20
acknowledged that many actions taken in a case, such as =
Arequests for standard =
disclosures, proof of background facts, depositions of the primary =
actors,=20
discovery motions and hearings, voir dire of the jury, and a host =
of other=20
services may be necessary whether a claim is filed alone or with=20
others,@ and held that to the =
extent=20
these services would have been incurred on a recoverable claim =
alone,=20
Athey are not =
disallowed simply=20
because they do double service.@ Id. But, the =
Court=20
reaffirmed that when certain services are performed only for an=20
unrecoverable claim, and are not doing Adouble =
service,@ a claimant must =
segregate=20
recoverable from unrecoverable fees. Id. In =
addition,=20
to recover fees for causes of action that are inextricably =
intertwined but=20
involve both recoverable and unrecoverable claims, lawyers must =
now=20
identify the discrete legal services that perform the dual service =
of=20
advancing both the recoverable and unrecoverable claims. =
Id.=20
at 313B14. A lawyer =
need not=20
keep separate time records for every service claimed to advance =
both a=20
recoverable and an unrecoverable claim; he may opine what =
percentage of=20
the service would have been required even if the unrecoverable =
claim had=20
not been brought. See id. at 314.
Here, Mr. Hagans did =
not take=20
the extra steps to identify the discrete legal services that =
advanced both=20
recoverable and non-recoverable claims. As a result, the =
case should=20
be remanded to allow Mr. Hagans to prove his fees. =20
Id.
/s/ =20
Wanda McKee Fowler
Justice
Judgment rendered and Memorandum =
Majority and=20
Concurring Opinions filed October 2, 2007.
Panel consists of =
Justices=20
Anderson, Hudson, and Fowler.(Anderson, J. Majority)
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