The opinion
Opinion issued August 31, 2026
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00842-CV
———————————
SUSTAINABLE TEXAS OYSTER RESOURCE MANAGEMENT, L.L.C.,
Appellant
V.
HANNAH REEF, INC., SHRIMPS R US, INC., IVO SLABIC, AND
MICHAEL IVIC, Appellees
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Case No. 15-CV-0772
MEMORANDUM OPINION
This is the second appeal in this dispute between appellant, Sustainable Texas
Oyster Resource Management, L.L.C. (“STORM”) and appellees, Hannah Reef,
Inc., Shrimps R Us, Inc., Ivo Slabic, and Michael Ivic (collectively, “the
1
Oystermen”). In the previous appeal, this Court affirmed the trial court’s judgment
in part, reversed the judgment in part, and remanded the case to the trial court for a
new trial limited to the issue of the Oystermen’s reasonable and necessary attorney’s
fees under the Uniform Declaratory Judgments Act (“UDJA”).1 See Sustainable
Tex. Oyster Res. Mgmt., L.L.C. v. Hannah Reef, Inc., 623 S.W.3d 851 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied). On remand, after a jury trial, the trial court
entered a final judgment, awarding the Oystermen $340,000 in attorney’s fees and
$40,000 in conditional appellate attorney’s fees.
Now, in six issues, STORM challenges the trial court’s award of attorney’s
fees to the Oystermen on the grounds that: (1) the trial court erred in failing to
include STORM’s requested lodestar instruction and lodestar question in the court’s
charge to the jury; (2) the evidence was legally insufficient to support the award of
attorney’s fees; (3) the evidence was factually insufficient to support the award of
attorney’s fees; (4) the Oystermen failed to segregate their fees; (5) the redacted
billing records admitted into evidence were hearsay and untrustworthy, and
therefore, inadmissible; and (6) notwithstanding the law-of-the-case doctrine, an
award of attorney’s fees was not available to the Oystermen under the UDJA.2
1
TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (“In any proceeding under this
chapter, the court may award costs and reasonable and necessary attorney’s fees as
are equitable and just.”).
2
The Oystermen did not file an appellees’ brief.
2
We affirm.
Background
The underlying dispute in this case concerned the parties’ competing rights to
cultivate and harvest oysters in certain areas of Galveston and Trinity Bays. A
detailed recitation of the historical facts and trial court proceedings through the first
trial is set forth in our prior opinion and therefore we provide only the background
necessary to resolution of this appeal.
On July 24, 2015, the Oystermen filed suit against STORM, asserting claims
to quiet title, for trespass to try title, and for tortious interference with prospective
business relations.3 The Oystermen also sued under the UDJA, seeking declaratory
relief, as well as requested injunctive relief, monetary damages, and attorney’s fees.4
STORM counterclaimed, asserting claims for trespass, conversion, money had and
received, and accounting.5 The Oystermen filed a partial motion for summary
judgment in which they requested that, pursuant to the UDJA, the trial court declare
the Coastal Surface Lease issued by Chambers–Liberty Counties Navigation District
to STORM, authorizing STORM to cultivate and harvest oysters on 23,000 acres of
3
See Sustainable Tex. Oyster Res. Mgmt., L.L.C. v. Hannah Reef, Inc., 623 S.W.3d
851, 857 (Tex. App.—Houston [1st Dist.] 2020, pet. denied).
4
See id.
5
See id. at 859.
3
submerged land in Galveston and Trinity Bays, void and unenforceable.6 STORM
filed a combined response to the Oystermen’s partial motion and a countermotion
for summary judgment.7
On September 28, 2016, the trial court granted partial summary judgment in
the Oystermen’s favor, specifically, granting the relief requested under the UDJA
and ordering that STORM take nothing on its counterclaims.8 The trial court signed
an order denying STORM’s countermotion for summary judgment the same day.9
Relevant here, in its partial summary judgment order, the trial court ruled that the
Oystermen “shall recover from . . . STORM their reasonable and necessary attorney
fees and costs under the [UDJA] TEX. CIV. PRAC. & REM. CODE ANN. § 37.009.”10
The case was called for a jury trial on November 13, 2017.11 The Oystermen’s
live pleading alleged causes of action for quiet title and trespass-to-try-title.12 The
previously pleaded tort claims of tortious interference and conspiracy had been
6
See id. at 859–60.
7
See id. at 860.
8
See id.
9
See id.
10
Id.
11
See id. at 861.
12
See id.
4
abandoned.13 Damages were no longer pleaded, but the petition continued to request
declaratory and injunctive relief along with attorney’s fees pursuant to the UDJA.14
At the beginning of trial, the Oystermen informed the trial court that they were
not pursuing their claims for quiet title and trespass-to-try-title, indicating to the trial
court that the declaratory relief granted in the earlier partial summary judgment order
had provided them adequate relief.15 And the only issue remaining for trial was the
amount of reasonable and necessary attorney’s fees the Oystermen were entitled to
recover under the UDJA.16
The issue of reasonable and necessary attorney’s fees was tried to a jury.17 In
support of the Oystermen’s attorney’s fees request, George W. Vie III (“Vie”), one
of the Oystermen’s attorneys, testified as their attorney’s fees expert.18 He opined
that the reasonable and necessary attorney’s fees incurred by the Oystermen since
the suit was filed was $417,000.19 The Oystermen offered billing records to support
13
See id.
14
See id.
15
See id.
16
See id.
17
See id. at 855.
18
See id. at 861.
19
See id.
5
the requested fees.20 Vie also provided testimony to support an award of conditional
appellate attorney’s fees.21
On cross-examination, STORM asked Vie whether he had segregated the
attorney’s fees between claims on which attorney’s fees may be recovered and those
for which they may not.22 Vie responded that he had not segregated the fees because
segregation was not necessary in this case.23 On redirect examination, Vie testified
that he believed segregation was not necessary because the attorney’s fees incurred
for claims for which attorney’s fees are not recoverable also “advanced the merits of
the [UDJA] claim” for which the Oystermen were entitled to recover attorney’s
fees.24
STORM moved for directed verdict on the Oystermen’s attorney’s fees
claim.25 Among its arguments, STORM objected that the Oystermen were required
20
See id.
21
See id.
22
See id.
23
See id.
24
Id. at 861–62.
25
See id. at 862.
6
to segregate their attorney’s fees and had failed to do so.26 The trial court overruled
STORM’s motion.27
STORM presented the testimony of J. Studer, an attorney’s fees expert.28
Studer testified that he had reviewed the billing records of the Oystermen’s attorneys
and had concluded that the attorney’s fees requested by the Oystermen were not
reasonable and necessary.29 Studer testified that the reasons for his opinion included
that the Oystermen were requesting attorney’s fees “not necessary and not related to
the claim for which they’re making claim on fees.”30 He stated that it was his opinion
that the Oystermen were “making [a] claim for fees for efforts that are related to
issues or parties that [they] abandoned and that did not advance the claim for [which]
they’re seeking fees today.”31
The jury found that the Oystermen’s reasonable and necessary attorney’s fees
for the trial court proceedings was $417,000 and that the Oystermen were entitled to
conditional appellate attorney’s fees for different stages of appeal, totaling
26
See id.
27
See id.
28
See id.
29
See id.
30
Id.
31
Id.
7
$75,000.32 The trial court’s final judgment incorporated the jury’s findings and
awarded the Oystermen $417,000 in attorney’s fees for proceedings through trial
and a total of $75,000 in conditional appellate attorney’s fees “pursuant to the
[UDJA].”33
B. First Appeal
STORM presented five issues in its first appeal. Among its challenges,
STORM argued that the trial court erred in awarding attorney’s fees to the
Oystermen under the UDJA because they failed to segregate the fees between
recoverable and unrecoverable fees.34
We agreed with STORM that evidence of fee segregation was required.35 We
noted:
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.36
32
See id.
33
Id.
34
See id. at 855.
35
See id. at 873.
36
Id. at 872 (internal citations and quotations omitted).
8
We concluded that because “[d]iscrete legal services were expended to
advance claims for which fees were not recoverable,” the Oystermen were required
to present evidence of the segregation of their attorney’s fees.37 Because they had
not done so, we reversed the portion of the trial court’s judgment awarding attorney’s
fees, including conditional appellate attorney’s fees, and remanded the case to the
trial court for a new trial limited to the issue of the Oystermen’s reasonable and
necessary attorney’s fees.38 Having overruled STORM’s other four issues, we
affirmed the remainder of the trial court’s judgment.39
C. Retrial
On remand, the trial court held a second jury trial on the issue of the
Oystermen’s reasonable and necessary attorney’s fees. As in the first trial, Vie
testified as the Oystermen’s attorney’s fees expert, and the Oystermen offered billing
records to support the requested fees.
Vie testified that he graduated from University of Texas Law School in 1988
and was licensed to practice law in Texas in 1989. Vie became board certified in
civil appellate law in 1995 and has been continuously board certified.
37
Id. at 873–74.
38
See id. at 876.
39
See id.
9
Vie introduced Plaintiff’s Exhibit No. 1, which he testified consisted of copies
of contemporaneous billing records from two law firms, Feldman and Feldman, the
lead firm, and Mills Shirley, the local firm. Vie explained that the billing records
covered the period from July 2015, when the case began, until the time of trial in
late 2017, but they did not include the first trial or appeal. Vie testified that the first
page of the exhibit was a one-page summary listing the attorneys, the time period of
the invoice, the invoice number, the fee amount, the expenses, and the total of that
invoice.
Vie further testified that he had worked as an attorney for both law firms at
different times. He stated that he was testifying as a custodian of records for both
firms, the copies of the billing records were true and correct copies of the documents,
and they were prepared by individuals with personal knowledge of them at the time
they were made.
STORM’s counsel objected to the admission of the billing records on the
ground that the records were redacted and therefore untrustworthy. The trial court
overruled STORM’s objection and admitted Plaintiff’s Exhibit No. 1 into evidence.
Vie testified that he reviewed the billing records before they were redacted.
He also testified that redaction of the billing records was necessary to preserve
attorney-client privilege and attorney work product in this case.
10
Vie explained that the billing records reflected the work performed by
partners, associates, contract attorneys, paralegals, and legal assistants on the case.
He testified that billing rates differed depending on the person’s title and years of
experience, and the number of hours worked depended on the role the person
performed in the case. Vie testified that one partner at Feldman and Feldman with
40 years’ experience worked 80 hours on the case and his billing rate was $500 an
hour; another partner with 18 years’ experience, and who was the lead attorney at
trial, worked 338 hours and his billing rate was $400 an hour; an associate with 2
years’ experience performed 874 hours of work and her billing rate was $250 an
hour; a contract attorney with 11 years’ experience worked 61 hours on the case and
her billing rate was $250 an hour; a law clerk, who was a third-year law student,
performed 88 hours of work which was billed at $75 an hour; and a legal assistant
worked 13.75 hours on the case at a billing rate of $150 an hour. Vie testified that
three partners at Mills Shirley worked on the case during this time at an hourly billing
rate of $300—one partner with 40 years’ experience worked 116 hours, one partner
worked 6 hours, and Vie, the third partner, worked 835 hours—and two paralegals
worked on the case at a billing rate of $100 an hour. Vie testified that after the
discounts for services and discounts given to the client were applied, the total net
billing for Feldman and Feldman was $399,000 and the total net billing for Mills
Shirley was $65,980. Vie testified that the services rendered included pleading
11
practice, motion practice, and discovery practice, as well as internal discussions
about the case such as tactics and strategy. In his opinion, the services rendered were
necessary and the rates charged by the attorneys, law clerks, legal assistants, and
paralegals for similar services were reasonable for attorneys and staff in the legal
community. Vie testified that adjustments were made to the fee application
submitted to the trial court which reduced the total amount of the attorney’s fees
sought by the Oystermen to $428,000.
Vie testified about the factors an attorney must consider when determining a
reasonable fee to charge a client, which include: (1) the time and labor required, the
novelty of the questions involved, and the skills necessary to perform the work; (2)
the likelihood that accepting the particular employment will preclude other
employment; (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 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
the results obtained or the uncertainty of collection before the legal services have
been rendered.
Vie testified that in addition to the UDJA claim, the Oystermen asserted a
trespass-to-try title claim and several tort claims. He explained that Texas law does
12
not permit the recovery of attorney’s fees for certain types of claims, including
trespass-to-try-title claims and some tort claims. He stated that if a lawsuit involves
claims that allow recovery of attorney’s fees and claims that do not, an attorney must
segregate the time spent on the claims for which attorney’s fees are recoverable from
the time spent on claims for which attorney’s fees are not recoverable. Vie explained
that, to segregate fees, an attorney must provide a rough estimate or an
approximation of the percentage of work that was done in relation to the claims for
which attorney’s fees are not recoverable. Vie testified that he was therefore
required to subtract a percentage of the total attorney’s fees for work done on the
trespass-to-try-title claim and tort claims. Vie testified that it was his opinion that
30% of the time spent on the case was spent on the claims for trespass-to-try-title,
civil conspiracy, and other tort claims pleaded for which attorney’s fees were not
recoverable. Vie stated that his estimate was based on a review of the claims asserted
and the amount of work performed as well as doing a word search for “trespass to
try title” in the billing records. Vie opined that based on his experience in the case,
the issues presented on appeal, and the billing records in Plaintiff’s Exhibit No. 1,
30% of the total amount of attorney’s fees, or $141,240, should be deducted, leaving
an attorney’s fees award of $286,760.
Vie testified that the next stage was the trial, which was held in November
2017 and lasted three-and-a-half or four days. He stated that the attorney’s fees
13
billed for trial totaled $36,000, which consisted of 40 hours of work done by a partner
at Feldman and Feldman at a billing rate of $400 and 80 hours of work done by an
associate at a rate of $250 an hour. Vie explained that although the Oystermen
received a favorable judgment at the first trial, because the court of appeals
remanded the case for segregation of fees, the Oystermen were not seeking to shift
the attorney’s fees billed for the first trial to STORM.
Vie testified that two of the attorneys rendered post-judgment services in
January 2018. Vie explained that STORM, having received an adverse verdict, filed
a motion for new trial and a motion to modify the judgment which are the predicate
to an appeal. Vie testified that one partner at Feldman and Feldman spent 2.75 hours
at a billing rate of $400 and one associate spent 27 hours at a billing rate of $250 on
the post-judgment services, for which they billed a total of $7,850. Vie opined that
the services provided before appeal were necessary, and the rates that were charged
by the two attorneys were reasonable rates in the legal community for those services.
Vie testified that the next stage of the case after the post-judgment work was
the appeal. Vie stated that he handled the appeal in the case. He explained that work
on the appeal involved conducting legal research and preparing a brief to submit to
the court of appeals. Vie testified that he worked a total of 104 hours, and at a billing
rate of $400, the Oystermen incurred $41,600 in attorney’s fees for work done on
14
the appeal. It was Vie’s opinion that his billing rate was a reasonable rate in the
community for a board-certified appellate attorney with his experience.
Vie explained that STORM presented five issues on appeal, and the
Oystermen prevailed on four of the issues, but they did not prevail on STORM’s
challenge to the attorney’s fees award. Vie testified that he therefore deducted 20%
of the amount billed for the appeal to account for the portion of the appeal on which
the Oystermen did not prevail. Vie explained that STORM filed a petition for review
in the Texas Supreme Court, which was denied, and that he did not do much briefing
in the supreme court. He testified that after deducting 20% from $41,600, the
remaining amount billed was $33,280 for the work on the appeal.
Vie testified that after the case was remanded, he spent 9.75 hours to prepare
for the retrial, at a billing rate of $400 an hour, for a total of $3,900. Vie concluded
that based on the work performed since 2015 (including adjustments made and a
30% deduction for work done on the claims for which attorney’s fees were not
recoverable), not charging for the work performed for trial, and adding the work
done on appeal (minus 20% for the issue on which the Oystermen did not prevail)
and on retrial, the Oystermen submitted a fee application seeking a total award of
attorney’s fees of $331,790.
Vie also testified about conditional appellate attorney’s fees. He stated that
based on his experience in handling appeals, his knowledge about the case, the length
15
of the first trial, and the issues he anticipated might be raised in a second appeal, it
was his opinion that the entire appellate process would take 40 hours; at a billing
rate of $400 an hour, conditional appellate attorney’s fees for the court of appeals
would be $16,000. Vie testified that it was his opinion that filing a petition for
review in the Texas Supreme Court would require 10 to 12 hours, so conditional
appellate attorney’s fees at a billing rate of $400 an hour would be $4,800. Vie
further testified that full merits briefing to the Texas Supreme Court would take 40
hours; at a billing rate of $400 an hour, conditional appellate attorney’s fees would
be $16,000. Vie opined that if oral argument was requested, it would require 8 hours
to prepare and argue; at a billing rate of $400, conditional appellate attorney’s fees
for that stage would be $3,200.
STORM did not call any witnesses in its case-in-chief or introduce any
evidence at trial.
After both sides rested, the trial court held a charge conference. STORM
objected to the Oystermen’s proposed jury charge on the grounds that (1) the
proposed instruction and question were erroneous because they constituted a
comment on the weight of the evidence; (2) the charge omitted STORM’s requested
lodestar instruction and lodestar question; (3) the evidence was legally insufficient
to support an award of attorney’s fees; (4) the evidence was factually insufficient to
support an award of attorney’s fees; (5) the evidence presented was conclusory; (6)
16
the evidence of the segregation of fees between recoverable and unrecoverable
claims was insufficient; and (7) Vie’s expert testimony was merely ipse dixit
unsupported by sufficient data. The trial court overruled STORM’s objections and,
orally and in writing, it refused STORM’s request to include the requested lodestar
instruction and lodestar question in its charge to the jury.
At the conclusion of trial, the jury returned a verdict in favor of the Oystermen.
The jury answered as follows:
QUESTION 1
The Court has previously determined that Plaintiffs are entitled
to declaratory judgment under Texas Civil Practice & Remedies Code
Chapter 37.
The Court has further previously determined that Plaintiffs are
entitled to an award of reasonable and necessary attorney’s fees, if any,
pursuant to Texas Civil Practice & Remedies Code § 37.009.
What is a reasonable fee for the necessary legal services of the
Plaintiffs’ attorneys?
A reasonable fee is the reasonable hours worked, and to be
worked, multiplied by a reasonable hourly rate for that work.
Do not include fees that relate solely to any other claim.
Answer with an amount for each of the following:
a. For preparation and trial.
ANSWER: $ $340,000
b. For an appeal to the Court of Appeals.
17
ANSWER: $ $16,000
c. For a Petition for Review to Supreme Court of Texas.
ANSWER: $ $4,800
d. If merits briefing is requested by the Supreme Court of Texas.
ANSWER: $ $16,000
e. If oral argument is requested by the Supreme Court of Texas.
ANSWER: $ $3,200
The Oystermen moved for entry of judgment. The trial court signed its final
judgment on remand, awarding reasonable and necessary attorney’s fees to the
Oystermen under Chapter 37 of the Texas Civil Practice and Remedies Code as
follows:
1. Reasonable and necessary attorney’s fees in the amount of $340,000
for services rendered in this case through entry of judgment.
2. Additionally, attorney’s fees for services on appeal are awarded
when [the Oystermen] have prevailed on appeal at one of more of these
stages: $16,000 for appeal to the Court of Appeals; $4,800 if a party
files a Petition for Review to the Supreme Court of Texas; $16,000 if
the Supreme Court requests briefing on the merits in connection with a
Petition for Review; and $3,200 if oral argument is requested by the
Supreme Court of Texas.
The trial court found the fees to be equitable and just under Texas Civil Practice and
Remedies Code Section 37.009. It further ordered that the Oystermen recover from
STORM post-judgment interest and courts costs.
18
STORM moved for a new trial, to disregard the jury’s verdict, and for
judgment non obstante veredicto (“JNOV”) after remand. The motions were
overruled by operation of law.
Requested Jury Instruction and Question
In its first issue, STORM asserts that the trial court erred by refusing to include
its requested lodestar instruction and lodestar question in the court’s charge to the
jury. According to STORM, the trial court’s failure to include the requested
instruction and question probably caused the rendition of an improper judgment or
prevented it from properly presenting its case to the court of appeals.
A. Standard of Review
We review jury charge error for an abuse of discretion. See Thota v. Young,
366 S.W.3d 678, 687 (Tex. 2012). A trial court abuses its discretion if it acts in an
arbitrary and unreasonable manner or if it acts without reference to any guiding rules
or principles. See King Fisher Marine Serv., L.P. v. Tamez, 443 S.W.3d 838, 850
(Tex. 2014). To determine whether an alleged error in a charge is reversible, we
must consider the pleadings, the evidence at trial, and the charge in its entirety.
Klentzman v. Brady, 456 S.W.3d 239, 265 (Tex. App.—Houston [1st Dist.] 2014),
aff’d, 515 S.W.3d 878 (Tex. 2017). For harm to result, the error must have probably
caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1).
19
B. Procedural Framework
Texas Rules of Civil Procedure 277 and 278 provide the framework for
obtaining an instruction and question in a jury charge. Under Rule 277, a trial court
must submit instructions and definitions “as shall be proper to enable the jury to
render a verdict.” TEX. R. CIV. P. 277. “This rule . . . affords the trial court
considerable discretion in deciding what instructions are necessary and proper in
submitting issues to the jury.” State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451
(Tex. 1997). “A trial court should submit explanatory instructions when in its sole
discretion, it determines that the instructions will help the jury to understand the
meaning and effect of the applicable law and presumptions.” KBIDC Invests., LLC
v. Zuru Toys Inc., No. 05-19-00159-CV, 2020 WL 5988014, at *18 (Tex. App.—
Dallas Oct. 9, 2020, pet. denied) (mem. op.); see also Sam Rayburn Mun. Power
Agency v. Gillis, No. 09-16-00339-CV, 2018 WL 3580159, at *12 (Tex. App.—
Beaumont July 26, 2018, pet. denied) (mem. op.). A jury should not be burdened
with surplus instructions, even those that accurately state the law. See Li v. TGS-
NOPEC Geophysical Co., --- S.W.3d ---, ---, 2026 WL 110680, at *2 (Tex. App.—
Houston [1st Dist.] Jan. 15, 2026, pet. denied). Consequently, every correct
statement of law does not necessarily belong in the jury charge. Gillis, 2018
3580159, at *12; see also KBIDC Invests., 2020 WL 5988014 at *18 (“Trial courts
20
should refuse to submit unnecessary instructions, even if the instructions are legally
correct statements.”).
Under Rule 278, a party is entitled to a jury question, instruction, or definition
if the written pleadings and evidence raise the issue. See TEX. R. CIV. P. 278. Jury
questions submitted must: (1) control the disposition of the case; (2) be raised by the
pleadings and the evidence; and (3) properly submit the disputed issues for the jury’s
determination. Spradley v. Michael E. Orsak, LP, No. 01-19-00186-CV, 2020 WL
7349490, at *6 (Tex. App.—Houston [1st Dist.] Dec. 15, 2020, no pet.) (mem. op.).
The failure to submit a question or instruction is not a ground for reversal unless its
submission, in substantially correct wording, was requested in writing and tendered
by the complaining party. Id.; Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166
(Tex. 2002).
C. Analysis
Prior to trial, STORM submitted in writing the following requested proposed
instruction and question to be included in the court’s charge to the jury:
D. Instruction Regarding Question ___.
[Q__ Instr. ___] You are instructed that for determining the
reasonableness and necessity of attorney’s fees in a fee-shifting
situation, what constitutes a reasonable attorney’s fee involves two
steps. First, you must determine the reasonable hours spent by counsel
in the case, if any, and a reasonable hourly rate for such work, if any.
Charges for duplicative, excessive, or inadequately documented work
should be excluded. If you determine a reasonable number of hours
and a reasonable hourly rate for such work, then you should multiply
21
the number of such hours by the applicable rate, the product of which
is called the base fee or lodestar. The base calculation should reflect a
reasonable hourly rate for the attorney to prosecute or defend
successfully against the claim at issue. You may then adjust the base
lodestar up or down - by applying a multiplier - if relevant factors
indicate an adjustment is necessary to reach a reasonable fee in the case.
You are instructed that the base lodestar figure is presumed to represent
reasonable and necessary attorney’s fees but other considerations may
justify an enhancement or reduction to the base lodestar. Accordingly,
you must then determine whether evidence of those considerations
overcomes the presumption and necessitates an adjustment to reach a
reasonable fee.
Question __
What is the base fee or lodestar?
Answer by stating in the number of hours and the hourly rate:
Number of Hours _______
Hourly Rate __________
At the charge conference, STORM objected to omission of its requested
lodestar instruction and lodestar question from the proposed jury charge. The
Oystermen responded that the requested instruction and question were not in
substantially correct wording. They argued that it was within the trial court’s
discretion to decide what instructions are necessary and proper, and even if the
requested instruction and question were substantially correct, it did not mean that
they belonged in the court’s charge. They further argued that a jury question should
be in broad form, whenever feasible, and STORM’s requested lodestar question was
not in broad-form submission. The trial court overruled STORM’s objection and
22
did not include the requested lodestar instruction and lodestar question in its charge
to the jury.
In its brief on appeal, STORM asserts that the trial court had a duty to include
its requested lodestar instruction and lodestar question. In support of its argument,
STORM points to the following language in the Texas Supreme Court’s decision in
Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019),
addressing application of the lodestar method in a fee-shifting situation:
[T]he fact finder must first determine a base lodestar figure based on
reasonable hours worked multiplied by a reasonable hourly rate. In a
jury trial, the jury should be instructed that the base lodestar figure is
presumed to represent reasonable and necessary attorney’s fees, but
other considerations may justify an enhancement or reduction to the
base lodestar; accordingly, the fact finder must then determine whether
evidence of those considerations overcomes the presumption and
necessitates an adjustment to reach a reasonable fee.
Id. at 501.
We disagree that Rohrmoos created an absolute duty to submit a specific
lodestar instruction and lodestar question on the request of a party. When a trial
court refuses to submit a requested instruction, the question on appeal is whether the
instruction was reasonably necessary “to enable the jury to render a proper verdict.”
TEX. R. CIV. P. 277; see Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d
909, 912 (Tex. 2000); Spradley, 2020 WL 7349490, at *6. For an instruction to be
proper, it must: (1) assist the jury; (2) accurately state the law; and (3) find support
in the pleadings and the evidence. TEX. R. CIV. P. 278 (“Failure to submit a
23
definition or instruction shall not be deemed a ground for reversal of the judgment
unless a substantially correct definition or instruction has been requested”);
Mandlbauer, 34 S.W.3d at 912.
Here, the trial court’s charge instructed the jury as follows: “The Court has . .
. previously determined that [the Oystermen] are entitled to an award of reasonable
and necessary attorney’s fees, if any, pursuant to Texas Civil Practice & Remedies
Code § 37.009. What is a reasonable fee for the necessary legal services of the
[Oystermen’s] attorneys? A reasonable fee is the reasonable hours worked, and to
be worked, multiplied by a reasonable hourly rate for that work.”
On this record, we cannot conclude that the trial court abused its discretion by
not including STORM’s requested instruction or question. The jury did not need the
instruction to understand the meaning or effect of law. Further, the question on
reasonable and necessary attorney’s fees submitted to the jury closely tracked
language from the Texas Pattern Jury Charges (“PJC”). See Comm. on Pattern Jury
Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer,
Insurance & Employment, PJC 115.47 (2014).40 By answering with an amount for
4040
PJC 115.47 asks: “What is a reasonable fee for the necessary services of [client’s]
attorney, stated in dollars and cents?” State Bar of Tex., Tex. Pattern Jury Charges:
Business, Consumer, Insurance, Employment, PJC 115.47 (2014). Although the
PJC is not “law,” it is heavily relied upon by bench and bar, and is based on what
the State Bar Committee perceives the present law to be. See Shelby Distribs., Inc.
v. Reta, 441 S.W.3d 715, 720 (Tex. App.—El Paso 2014, no pet.); THI of Tex. at
24
each category, the jury indicated what sum it found to be a reasonable and necessary
fee for the legal services provided by the Oystermen’s attorneys.
STORM concedes that it could not find authority discussing this exact issue
but suggests there is “an emerging trend” among courts of appeals to reverse
attorney’s fees awards where the trial court was the fact finder and did not apply the
lodestar method. It cites Challis v. Fiamma Statler, LP, 02-22-00047-CV, 2023 WL
2534470 (Tex. App.—Fort Worth Mar. 16, 2023, no pet.) (mem. op.) and Asta
Partners, LLC v. Palaniswamy, No. 02-20-00371-CV, 2021 WL 5133888 (Tex.
App.—Fort Worth Nov. 4, 2021, no pet.) (mem. op) in support of its assertion.
In Challis, the trial court, on remand, awarded $74,109.87 in trial attorney’s
fees and $40,600 in appellate attorney’s fees to appellants, which was approximately
9.6% of appellants’ proven incurred fees. See Challis, 2023 WL 2534470, at *5.
Appellants argued that the amount of the attorney’s fees award on remand was
against the great weight and preponderance of the evidence. See id. at *1. The court
of appeals agreed, noting that the trial court made findings of fact and conclusions
of law to support its award, but the findings and conclusions did not explain how the
trial court arrived at the $114,709.87 figure. See id. at *5. The court further noted
that the disproportionate nature of the trial court’s award pointed to another issue as
Lubbock I, LLC v. Perea, 329 S.W.3d 548, 569 (Tex. App.—Amarillo 2010, pet.
denied).
25
well: the court’s failure to apply the lodestar analysis. See id. at *6. Specifically,
the trial court’s findings did not identify the reasonable number of hours worked and
did not identify a reasonable hourly rate; instead, the only hourly rates recited in the
trial court’s findings were the billing rates charged by appellants’ legal team. See
id. The court opined that “given the size of the fee award, it seems safe to say that
the trial court did not adopt [appellants’] billing rates. . . . In short, we have no idea
how the trial court came to its award figure, but it does not appear to have been
through application of the lodestar method to the evidence proffered by the parties.”
Id. at *6. After noting that appellants had used the lodestar method, addressed the
Arthur Andersen factors,41 and presented detailed evidence of their attorney’s fees,
the court concluded that “the trial court’s award [was] inconsistent with this
evidence, and there [was] nothing in the record to explain the departure or to
indicat[e] that the trial court determined the reasonable hours worked or a reasonable
hourly rate.” Id. at *7 (internal quotations omitted).
In Asta Partners, the court reversed an award of attorney’s fees because the
trial court’s findings and conclusions did not reflect an application of the lodestar
method. See Asta Partners, 2021 WL 5133888, at *2. The prevailing party had a
contingency agreement with its attorneys for 40% of the verdict, but to recover for
41
See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.
1997).
26
its fees under the lodestar method, it introduced detailed evidence that its counsel
had worked 588.4 hours on the case and that his hourly rate was $575. See id. at *9–
11. The court noted that, although the trial court’s findings described the $575
hourly rate as unreasonable for “significant portions of the work [that counsel]
performed,” the findings “d[id] not demonstrate that the trial court determined what
a reasonable rate should be for such work.” Id. at *12. The court stated that it had
“no indication that the trial court determined the reasonable hours worked or a
reasonable hourly rate.” Id. Instead, the amount of the award indicated that the court
had “skipped [the base-lodestar] step and relied solely on the contingency-fee
agreement.” Id. The court held that the trial court abused its discretion in awarding
trial attorney’s fees based solely on the contingency-fee agreement. See id.
STORM’s reliance on Challis and Asta Partners for its argument that the trial
court erred in failing to include its requested lodestar instruction and lodestar
question is misplaced. In both cases, the trial court was the fact finder, and the
question of whether a trial court’s failure to include a lodestar question and lodestar
instruction in the jury charge is error was not at issue. Further, in Challis and Astra,
unlike in this case, the trial court’s award of attorney’s fees and its findings of fact
and conclusions of law demonstrated that the trial court had not applied the lodestar
method in determining the attorney’s fees awards. Here, in contrast, the jury
awarded the exact amount of attorney’s fees requested by the Oystermen, which was
27
calculated by multiplying the number of hours counsel worked on the case by their
billing rates, to arrive at the lodestar. Vie detailed for the jury how many hours each
member of the Oystermen’s legal team worked on the case and what each member’s
billing rate was. He explained that the law firms’ total net billing was calculated by
multiplying the number of hours worked by each member of the firms’ legal teams
by the member’s billing rate. Vie discussed each of the Arthur Andersen factors
used in determining the reasonableness of a fee and testified that, in his opinion, the
services rendered were necessary and the rates charged by the attorneys, law clerks,
legal assistants, and paralegals were reasonable for attorneys and staff in the legal
community. Thus, the jury was able to evaluate the attorney’s fees evidence under
the lodestar framework because the submitted charge instructed the jury as to what
a reasonable fee was, it included a general attorney’s fees question, and the evidence
was presented in lodestar form. We hold that the trial court did not err in failing to
include STORM’s requested lodestar instruction and lodestar question in the jury
charge.
We overrule STORM’s first issue.
Sufficiency of the Evidence
In its second and third issues, STORM asserts that the evidence is legally and
factually insufficient to support the amount of attorney’s fees awarded to the
Oystermen. It argues that Vie’s testimony merely offered generalizations about the
28
reasonableness and necessity of the requested attorney’s fees, was conclusory, and
was nothing more than ipse dixit. In its fifth issue, STORM asserts that the
Oystermen’s billing records admitted into evidence were hearsay and so heavily
redacted that it was impossible for the jury to determine the work performed or
whether the fees charged and time spent were reasonable and necessary, making
them untrustworthy and inadmissible.
A. Standard of Review
We review a trial court’s award of attorney’s fees for an abuse of discretion.
See Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 850 (Tex. 2018). A
trial court abuses its discretion if it acts without reference to any guiding rules and
principles such that its ruling was arbitrary or unreasonable. See Am. Flood
Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006).
We review the amount of attorney’s fees award for legal and factual
sufficiency. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). When
reviewing the sufficiency of the evidence supporting the amount of an attorney’s
fees award, we consider the evidence before the jury, crediting evidence in support
of the verdict if reasonable jurors could, and disregarding evidence contrary to the
verdict unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802,
807 (Tex. 2005). If there is more than a scintilla of evidence to support the finding,
the evidence is legally sufficient. See id. at 813.
29
In a factual sufficiency review, we consider and weigh all of the evidence,
both supporting and contradicting the finding. See Mar. Overseas Corp. v. Ellis,
971 S.W.2d 402, 406–07 (Tex. 1998). We may set aside the finding only if it is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust. See id. at 407. In conducting our review, we are mindful that the jurors, as
fact finders, are the sole judges of witness credibility and the weight to be given their
testimony, see Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003), and it is the jurors’ role to resolve any conflicts in the evidence. See Keller,
168 S.W.3d at 820. We must defer to the jurors’ determination of these matters and
their resolution of conflicting evidence. Id.
B. Applicable Law
In Texas, each party generally must pay its own way in attorney’s fees.
Rohrmoos, 578 S.W.3d at 483. But there are certain circumstances in which the
prevailing party can recover fees from the opposing party. Id. at 484. When fee-
shifting is authorized, whether by statute or contract, the party seeking a fee award
must prove the reasonableness and necessity of the requested attorney’s fees. Id.
Whether the requested fees are both reasonable and necessary are questions of fact
to be determined by the fact finder. Id. at 489.
“General, conclusory testimony devoid of any real substance will not support
a fee award.” Id. at 501. “Thus, a claimant seeking an award of attorney’s fees must
30
prove the attorney’s reasonable hours worked and reasonable rate by presenting
sufficient evidence to support the fee award sought.” Id. at 501–02. Sufficient
evidence to support an award of attorney’s fees includes, at a minimum, the
following evidence: (1) the particular services performed; (2) who performed those
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 the services. Id. at 502.
Under the lodestar method, the fact finder must first determine the reasonable
hours spent by counsel in the case and the reasonable hourly rate for counsel’s work
and then multiply the number of hours worked by the applicable rate, the product of
which is the base fee or lodestar. See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757,
760 (Tex. 2012). Non-exclusive factors the fact finder should consider in
determining the amount of attorney’s fees to be awarded include: (1) the time and
labor required, the novelty and difficulty of the questions involved, and the skill
required to perform the legal service properly; (2) the likelihood that acceptance of
the particular employment will preclude other employment; (3) the fee customarily
charged in the locality for similar 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
expertise, reputation, and ability of the lawyer performing the services; and (8)
31
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 Equip.
Corp., 945 S.W.2d 812, 818 (Tex. 1997). There is a presumption that the base
lodestar calculation, when supported by sufficient evidence, reflects the reasonable
and necessary attorney’s fees that can be shifted to the non-prevailing party. See
Rohrmoos, 578 S.W.3d at 499.
C. Analysis
In addition to Vie’s testimony, the Oystermen introduced into evidence (1)
177 pages of contemporaneous billing records from Feldman and Feldman and Mills
Shirley, covering the period from July 2015 when the case began until the time of
trial in late 2017, and (2) a one-page summary that synthesized the information in
the billing records and identified the firm, the time period of the invoice, the invoice
number, the fee amount, the amount of expenses, and the total of each invoice.
Vie identified the attorneys and legal staff from Feldman and Feldman who
worked on the case: one partner who worked 80 hours at a hourly billing rate of
$500, one partner (and lead counsel at trial) who worked 338 hours at an hourly rate
of $400, an associate who worked 874 hours at an hourly rate of $250, a contract
attorney who worked 61 hours at an hourly rate of $250, a third-year law clerk who
worked 88 hours at an hourly rate of $75, and a legal assistant who worked 13.75
hours at an hourly rate of $150. He testified that three partners at Mills Shirley
32
worked on the case during this period at an hourly billing rate of $300—one partner
worked 116 hours, a second partner worked 6 hours, and Vie, the third partner,
worked 835 hours—and two paralegals worked on the case at a billing rate of $100
an hour. Vie testified that the services rendered included pleading practice, motion
practice, and discovery practice, as well as internal discussions about the case such
as tactics and strategy. In Vie’s opinion, the rates charged by the attorneys and staff
were comparable to the rates customarily charged in Harris County, Texas and
Galveston County, Texas for similar legal services, and the legal services provided
were necessary. Vie testified that, based on the invoices, the Oystermen had incurred
$399,000 (Feldman and Feldman) and $65,980 (Mills Shirley) in attorney’s fees
between July 2015 and late 2017 (which did not include trial). Vie explained that
after adjustments were made to the fees, the Oystermen’s fee application submitted
to the trial court requested an attorney’s fee award of $428,000.
Vie testified that he segregated the fees for the work done on the trespass-to-
try-title claim and tort claims for which attorney’s fees were not available from the
work done on the UDJA claim for which attorney’s fees were available. Vie
explained that based on his review of the claims asserted and the work done, he
estimated that 30% of the work was performed on claims for which attorney’s fees
were not recoverable. Vie explained that he reduced the amount of attorney’s fees
by 30%, leaving attorney’s fees in the amount of $286,760 for this period.
33
Vie testified that the first trial in November 2017 lasted approximately three-
and-a-half or four days. He stated that the attorney’s fees billed for trial totaled
$36,000 (40 hours of work done by a partner at a billing rate of $400, and 80 hours
of work done by an associate at a rate of $250 an hour). Vie explained that although
the Oystermen received a favorable judgment at the first trial, this Court later
remanded the case for segregation of fees, and therefore the Oystermen did not seek
to shift the attorney’s fees billed for the first trial to STORM.
Vie explained that STORM, having received an adverse verdict, filed a motion
for new trial and a motion to modify the judgment. Vie explained that these filings
required Oystermen’s attorneys to render post-judgment services. One partner
worked 2.75 hours at a billing rate of $400 and an associate worked 27 hours at a
billing rate of $250 which resulted in total billing of $7,850. Vie opined that the
services provided post-judgment were necessary, and the rates that were charged by
the two attorneys were reasonable rates in the legal community.
Vie testified that he handled the appeal which included conducting legal
research and preparing an appellate brief. Vie testified that he worked a total of 104
hours, and at a billing rate of $400, the Oystermen incurred $41,600 in attorney’s
fees for work done on the appeal. It was Vie’s opinion that his billing rate was
comparable to the rates charged for a board-certified appellate attorney with his
experience.
34
Vie stated that STORM presented five issues on appeal. He explained that
this Court affirmed the trial court’s judgment in favor of the Oystermen on four of
the issues, but it reversed the attorney’s fees award and remanded the case for
segregation of the attorney’s fees. Vie testified that he deducted 20% of the total
amount billed for work on the appeal ($41,600 - $8,320) to account for the one issue
on which the Oystermen did not prevail. The remaining amount of attorney’s fees
billed was $33,280.
Vie testified that after the case was remanded, he spent 9.75 hours to prepare
for the retrial, at a billing rate of $400 an hour, for a total amount billed of $3,900.
In summary, Vie testified that based on the work performed since 2015 (including
adjustments made and a 30% deduction for work done on the claims for which
attorney’s fees are not recoverable), not charging for the work performed for trial,
and adding the services provided on appeal (after reducing the amount by 20% for
the issue on which the Oystermen did not prevail) and the services provided for
retrial of the case, the Oystermen submitted a fee application seeking a total award
of attorney’s fees of $331,790.
Vie testified about conditional appellate attorney’s fees. He testified that
based on his experience in handling appeals, his knowledge about the case, the length
of the first trial, and the issues he anticipated might be raised in a second appeal, it
was his opinion that if the Oystermen were successful, the following conditional
35
appellate attorney’s fees at an hourly billing rate of $400 were reasonable: 40 hours
of work for an appeal to the court of appeals totaling $16,000, 10-12 hours of work
to file a petition of review to the Supreme Court of Texas totaling $4,800; 40 hours
for full merit briefing to the Supreme Court of Texas totaling $16,000; and 8 hours
to prepare and argue if oral argument was requested in the Supreme Court of Texas
totaling $3,200.
STORM argues that Vie’s testimony merely offered generalizations
unsupported by data and was nothing more than ipse dixit because he simply asked
the jury to take his word for it. On the contrary, Vie testified to the services
performed by the attorneys at the two law firms, including drafting and amending
pleadings, conducting discovery, performing legal research, and preparing for trial.
The 177 pages of contemporaneous billing records admitted into evidence
corroborated Vie’s testimony and reflected the hours billed, the attorney or legal
assistant who performed the legal work, and their billing rates and included a
description of the work performed from 2015 until the time of trial in 2017. See
Rohrmoos, 578 S.W.3d at 502 (“Contemporaneous billing records are not required
to prove that the requested fees are reasonable and necessary. . . . Nevertheless,
billing records are strongly encouraged to prove the reasonableness and necessity of
requested fees when those elements are contested.”). In addition, the one-page
summary identified the firm, the time period of the invoice, the invoice number, the
36
fee amount, the amount of expenses, and the total of each invoice. Vie also provided
detailed testimony about the post-judgment legal services that were provided
through the time of retrial. See id. We further note that STORM did not offer any
evidence to controvert the Oystermen’s evidence submitted in support of their
attorney’s fees. See Jarvis v. Rocanville Corp., 298 S.W.3d 305, 319 (Tex. App.—
Dallas 2009, pet. denied) (noting plaintiffs did not submit any conflicting evidence,
or otherwise controvert, defendants’ attorney’s testimony that their reasonable and
necessary attorney’s fees for trial would be $50,000, and concluding trial court had
sufficient uncontroverted evidence upon which to exercise its discretion). Taken
together, Vie’s testimony and the contemporaneous billing records provided the jury
with the type of detailed information required by Rohrmoos. See Rohrmoos, 578
S.W.3d at 498 (stating sufficient evidence includes, “at a minimum, evidence of (1)
particular services performed, (2) who performed those 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.”).
STORM also argues that the Oystermen’s billing records and the one-page
summary constitute hearsay.
“Hearsay” is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
37
asserted. TEX. R. EVID. 801(d). The business records exception provides that
evidence meeting certain criteria should not be excluded under the hearsay rule.
TEX. R. EVID. 803(6). The foundation for the business records exception has four
requirements: (1) the records were made and kept in the course of a regularly
conducted business activity; (2) it was the regular practice of the business to make
the records; (3) the records were made at or near the time of the event that they
record; and (4) the records were made by a person with knowledge who was acting
in the regular course of business. Powell v. Vavro, McDonald & Assocs., L.L.C.,
136 S.W.3d 762, 765 (Tex. App.—Dallas 2004, no pet.).
“Business records of an attorney are admissible pursuant to Rule 803(6) to
support attorney’s fees.” Lesikar v. Moon, No. 14-11-01016-CV, 2012 WL
3776365, at *7 (Tex. App.—Houston [14th Dist.] Aug. 30, 2012, pet. denied) (mem.
op.). Vie testified that he was custodian of the billing records for both law firms and
the records were true and correct copies of the documents used in the case. He
testified that it was the normal billing practice of both firms for the attorneys to enter
their time, which timekeepers input into the billing system, and an invoice was then
generated and sent to the client. Vie testified that the contemporaneous billing
records were prepared by individuals with personal knowledge of the time entries at
the time they were entered. Vie’s testimony coupled with the documents themselves
met the requirements of Texas Rule of Evidence 803(6).
38
STORM also argues that the billing records were too heavily redacted to
permit the jury to determine the work performed or whether the fees charged and
time spent were reasonable and necessary, making them untrustworthy and
inadmissible.
While many pages of the billing records are extensively redacted, 42 the
records, coupled with Vie’s testimony about the legal services the firms provided to
the Oystermen, provided sufficient information to allow the jury to meaningfully
assess the reasonableness and necessity of the legal services provided to the
Oystermen. See Isomeric Indus., Inc. v. Triple Crown Res., LLC, No. 01-22-00768-
CV, 2023 WL 6884172, at *4 (Tex. App.—Houston [1st Dist.] Oct. 19, 2023, no
pet.) (mem. op.) (recognizing billing records are insufficient evidence of fees when
entire description of work performed is redacted, but that records before court, which
were only partly redacted to prevent disclosure of information protected by attorney-
client privilege, provided enough detail about specific tasks to serve as evidence of
fees); Tite Water Energy, LLC v. Wild Willy’s Welding LLC, No. 01-22-00158-CV,
42
For example, some of the specific tasks include descriptions such as “Attorney
conferences regarding [redacted],” “Legal research regarding [redacted],” and
“Discussion with [redacted] regarding [redacted].” However, other descriptions
include more detail, such as “Review notices of hearing filed by CLCND and
STORM; review email correspondence and documents from TPWD general counsel
regarding oyster leases,” “Review correspondence and Addendum to lease 410A
from TPWD; research,” and “E-mail correspondence with Lance Robinson, TPWD,
regarding request for addendum. Telephone message and e-mail correspondence to
Janet Gibreal, Texas Land Office, Coastal Resources, regarding request for county
information for lease 413A, tracts 199 & 137.”
39
2023 WL 5615816, at *11 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023, pet.
denied) (mem. op.) (affirming jury award of $1,171,679.50 in attorney’s fees when
“extensively redacted” billing invoices coupled with attorney’s testimony “provided
sufficient information to allow the jury meaningfully to assess the reasonableness
and necessity of the legal services”); Bailey v. Smith, 581 S.W.3d 374, 398 (Tex.
App.—Austin 2019, pet. denied) (concluding fee records detailing specific amounts
of time attorneys spent on tasks such as “Drafting/Revising Documents,”
“Reviewing/Research Background Info,” “Conferring with AG Personnel,” and
similar categories were sufficiently specific to enable trial court to make meaningful
evaluation of reasonableness of fees claimed for each attorney on case).
STORM also argues that the trial court erred in allowing the Oystermen to
rely on the redacted billing records at trial because their use violated the “offensive
use” doctrine.
The offensive use doctrine prohibits a plaintiff from maintaining evidentiary
privileges that protect from discovery outcome-determinative information not
otherwise available to a defendant. See Tex. Dep’t of Pub. Safety Officers Ass’n v.
Denton, 897 S.W.2d 757, 760–61 (Tex. 1995). The theory underlying the doctrine
is that a plaintiff who is seeking affirmative relief should not be permitted to
maintain the action, and at the same time maintain evidentiary privileges that protect
from discovery outcome-determinative information not otherwise available to the
40
defendant. Id. at 761. When determining whether the doctrine should apply, courts
consider whether the following elements are met: (1) the party asserting the privilege
is seeking affirmative relief; (2) the privileged information is such that, if it is
believed by the factfinder, in all probability it would be outcome determinative of
the cause of action asserted; and (3) the disclosure of the confidential communication
is the only means by which the aggrieved party may obtain the evidence. See In re
Exxon Mobil Corp., 389 S.W.3d 577, 580 (Tex. App.—Houston [14th Dist.] 2012,
orig. proceeding [mand. denied]) (citing Republic Ins. Co. v. Davis, 856 S.W.2d 158,
163 (Tex. 1993)).
STORM’s reliance on the offensive use doctrine is unavailing. Texas cases
addressing the offensive use doctrine are typically in the context of mandamus
proceedings involving discovery disputes, where a party seeks to compel the trial
court to order production of materials (or vacate its order compelling production)
that the opposing party is shielding with a privilege claim. See, e.g., In re Nat’l
Lloyds Ins. Co., 532 S.W.3d 794, 807 (Tex. 2017) (orig. proceeding) (addressing
offensive use doctrine in context of discovery disputes and recognizing party may
waive its work-product privilege through offensive use when it relies on its own
billing records to contest reasonableness of opposing counsel’s fees or seeks to
recover its own attorney’s fees); In re Starr Indem. & Liab. Co., 12-24-00191-CV,
2024 WL 3858473, at *6–7 (Tex. App.—Tyler Aug. 15, 2024, orig. proceeding
41
[mand. denied]) (concluding trial court did not abuse its discretion in prohibiting
relator from seeking production of documents from law firms and denying petition
for writ of mandamus); In re Exxon Mobil Corp., 389 S.W.3d at 583 (conditionally
granting mandamus relief and ordering trial court to vacate its order compelling
production of privileged documents at issue). We also note that STORM did not
object to the Oystermen’s reliance on the redacted billing records at trial on the
ground that their use was prohibited by the offensive use doctrine. See TEX. R. APP.
P. 33.1(a) (stating in order to preserve complaint for review, action or omission
which is alleged as error or abuse of discretion on behalf of trial court must have
been basis of timely request, objection, or motion that specified action that trial court
was requested to take, or to forbear from taking, and adverse ruling must have been
obtained); see also In re United Supermarkets, Inc., 36 S.W.3d 619, 622 (Tex.
App.—Amarillo 2000, orig. proceeding) (denying petition for writ of mandamus
where relator’s argument that lawyer-client privilege did not bar discovery because
real-parties-in-interest were making offensive use of privilege was not presented to
trial court, and trial court did not make ruling regarding applicability of offensive
use theory, thus waiving argument for appellate review).
After considering the evidence before the jury, crediting evidence in support
of the verdict if reasonable jurors could, and disregarding evidence contrary to the
verdict unless reasonable jurors could not, we conclude there is more than a scintilla
42
of evidence supporting the amount of attorney’s fees the jury awarded to the
Oystermen. See City of Keller, 168 S.W.3d at 811, 813, 827. We further conclude
that the jury’s award of attorney’s fees was not so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust. See Mar. Overseas, 971
S.W.2d at 407. We hold that the evidence was legally and factually sufficient to
support the amount of attorney’s fees awarded to the Oystermen.
We overrule STORM’s second, third, and fifth issues.
Segregation of Fees
In its fourth issue, STORM argues that the Oystermen failed to properly
segregate their fees between claims for which attorney’s fees are available and
claims for which they are not.
Generally, a party seeking attorney’s fees must segregate fees for recoverable
claims from those for which they are not. See Hannah Reef, 623 S.W.3d at 872
(stating party seeking attorney’s fees must prove that requested fees have been
properly segregated or that segregation is not required). “[S]egregation evidence
need not be extensive to be sufficient.” Kelly v. Isaac, No. 05-19-00813-CV, 2020
WL 4746589, at *8 (Tex. App.—Dallas Aug. 17, 2020, pet. denied) (mem. op.)
(citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006)).
“[T]o meet a party’s burden to segregate its attorney[’s] fees, it is sufficient to submit
to the fact-finder testimony from a party’s attorney concerning the percentage of
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hours that related solely to a claim for which fees are not recoverable.” Hannah
Reef, 623 S.W.3d at 872; see also Young v. Dimension Homes, Inc., No. 01-14-
00331-CV, 2016 WL 4536407, at *10 (Tex. App.—Houston [1st Dist.] Aug. 30,
2016, no pet.) (mem. op.) (“[A]n attorney can satisfy his evidentiary burden by
presenting evidence of unsegregated attorney’s fees and a rough percentage of the
amount attributable to the claims for which fees are not recoverable.”).
Vie estimated that 30% of the Oystermen’s attorney’s fees was for work
relating solely to the claims for trespass-to-try-title and the tort claims for which
attorney’s fees were not recoverable. He testified that his estimate was based on his
review of the claims asserted and the amount of work performed as well as doing a
word search for “trespass-to-try-title” in the billing records. Vie stated that based
on his experience in the case, the issues presented on appeal, and the billing records
in Plaintiff’s Exhibit No. 1, 30% of the fees, or $141,240, had to be deducted from
the fee bill. We hold that this is sufficient to meet the Oystermen’s burden to
segregate their fees. See Kelly, 2020 WL 4746589, at *8–9; Young, 2016 WL
4536407, at *10.
We overrule STORM’s fourth issue.
Attorney’s Fees Awarded Under UDJA
In their sixth issue, STORM argues that, notwithstanding the law-of-the-case
doctrine, the trial court erred in awarding attorney’s fees to the Oystermen because
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attorney’s fees awarded under the UDJA are not recoverable, and may not be
awarded, in a trespass-to-try-title suit when, as here, the claim is not solely the
determination of the proper boundary line between adjoining properties. STORM
asks this Court to revisit the issue of whether the Oystermen were entitled to obtain
attorney’s fees under the UDJA. We decline to do so.
In the previous appeal, we held that the Oystermen were entitled to declaratory
relief, and therefore, they were entitled to obtain attorney’s fees under the UDJA.
See Hannah Reef, 623 S.W.3d at 871–72. However, we also determined that the
Oystermen were required to present evidence of the segregation of their attorney’s
fees. See id. at 874. Because they did not do so, we reversed the attorney’s fees
award and remanded the issue to the trial court “for a new trial limited to the issue
of the Oystermen’s reasonable and necessary attorney’s fees.” Id. at 876.
“Typically, if segregation is required and the claimant does not provide testimony
from counsel on the proper segregation of the fee, the cause is remanded for a factual
determination of the portion of the attorneys’ work that is attributable to the
recoverable claim.” McMahon v. Zimmerman, 433 S.W.3d 680, 691 (Tex. App.—
Houston [1st Dist.] 2014, no pet.). Here, however, STORM asks that we reconsider
whether the Oystermen were entitled to obtain attorney’s fees under the UDJA at all.
We conclude that the law-of-the-case doctrine applies to our earlier holding that the
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Oystermen were entitled to declaratory relief and thus entitled to obtain attorney’s
fees under the UDJA.
Under the law-of-the-case doctrine, a court of appeals will ordinarily be bound
by its initial decision if there is a subsequent appeal in the same case. Briscoe v.
Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). “A decision rendered on an
issue before the appellate court,” however, “does not absolutely bar re-consideration
of the same issue on a second appeal.” Id. Rather, “[a]pplication of the doctrine lies
within the discretion of the court, depending on the particular circumstances
surrounding that case.” Id. Because we remanded the case to the trial court for a
factual determination of the portion of the Oystermen’s attorneys’ work that was
attributable to the recoverable claim, i.e., the UDJA claim, we decline to exercise
our discretion to reconsider our earlier holding that the Oystermen were entitled to
obtain attorney’s fees under the UDJA. See id.
We overrule STORM’s sixth issue.
Conclusion
We affirm the trial court’s judgment.
Kristin M. Guiney
Justice
Panel consists of Chief Justice Adams and Justices Rivas-Molloy and Guiney.
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