Bacon-Tomsons, LTD., BRL Oil and Gas, L.L.C. and Ferrell Edwin Munson v. Chrisjo Energy, Inc., Jack M. Cline and Imperial Petroleum, Inc.

Opinion issued August 9, 2016

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-15-00305-CV

———————————

BACON TOMSONS, LTD., BRL OIL AND GAS, L.L.C., AND FERRELL

EDWIN MUNSON, Appellants

V.

CHRISJO ENERGY, INC. AND JACK M. CLINE, Appellees

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Case No. 12-CV-0428

MEMORANDUM OPINION

Appellants, Bacon Tomsons, Ltd., BRL Oil and Gas, L.L.C., and Ferrell

Edwin Munson (collectively “BTL”), sued appellees Chrisjo Energy, Inc. and Jack

M. Cline (collectively “Chrisjo”) for various claims, including fraud, conversion,

breach of the Texas Deceptive Trade Practices Act (“DTPA”), and violation of the

Texas Theft Liability Act (“TTLA”), arising out of the parties’ investment in a

pipeline facility. At trial, BTL nonsuited its DTPA and TTLA claims, and the trial

court granted a directed verdict on its remaining claims against Chrisjo, ordering

that BTL take nothing on those claims. The trial court then awarded Chrisjo

attorney’s fees under the TTLA as a “prevailing party.” In four issues on appeal,

BTL argues that (1) the trial court’s plenary power had expired before it entered

the order and judgment awarding Chrisjo’s attorney’s fees; (2) alternatively,

Chrisjo was not a “prevailing party” entitled to attorney’s fees under the TTLA;

(3) alternatively, Chrisjo did not properly segregate its evidence of TTLA

attorney’s fees; and (4) the trial court erred in concluding that BTL’s conversion

claim against Chrisjo was barred by the statute of limitations.

We affirm.

Background

In 2004, Chrisjo entered into an agreement with a third party, Mideast Gas

Systems, to develop an existing oil and gas pipeline in Plaquemines Parish,

Louisiana, and to construct an additional gas sales pipeline, a saltwater disposal

well, and metering stations (“Pipeline Facilities”). The Pipeline Facilities serviced

the Coquille Bay Field, which is located offshore along the coast of Louisiana.

Mideast retained a 25% interest in the Pipeline Facilities, and Chrisjo obtained a

75% interest in the Pipeline Facilities in exchange for raising $700,000 in capital.

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BTL invested money through Chrisjo to purchase a portion of Chrisjo’s share in

the Pipeline Facilities, obtaining an 8.75% ownership interest in the Pipeline

Facilities. Chrisjo and BTL memorialized their agreement in a Private Placement

Memorandum (“PPM”), which provided that investors would be entitled to collect

a proportionate share of the fees paid for the transport of oil and gas through the

Pipeline Facilities. Chrisjo recorded an assignment of interest in the Plaquemines

Parish property records reflecting the investors’ ownership interest in the Pipeline

Facilities, including those of BTL. Chrisjo sent its investors, including BTL,

payments, statements, and tax documents reflecting the amount earned by each

investor based on those fees until 2008, when various problems with operating the

pipeline arose.

The investment in the Pipeline Facilities was never very profitable, and the

project was plagued by damage to the Coquille Bay Field caused by numerous

hurricanes and tropical storms in addition to other problems. In 2010, the operator

of the Coquille Bay Field, Imperial Petroleum (“Imperial”), expressed an interest

in purchasing the Pipeline Facilities to consolidate the ownership of the various

interests in the oil and gas field and to simplify its efforts to comply with certain

operating requirements set out by the state of Louisiana. In December 2010, the

majority of the investors in the Pipeline Facilities—all of the owners except

BTL—transferred their interests in the Pipeline Facilities to Imperial in exchange

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for Imperial stock. Imperial made subsequent representations to the Securities and

Exchange Commission (“SEC”) that this sale gave it a 100% ownership interest in

the Pipeline Facilities and then eventually sold all of its interests in the Coquille

Bay Field to a third party.

On March 15, 2012, BTL filed suit against Chrisjo, Jack M. Cline, and

Imperial Petroleum.1 BTL alleged causes of action for fraud, negligent

misrepresentation, conversion, and breach of fiduciary duty, and it alleged

violations of the DTPA, the TTLA, and the Texas Securities Act. BTL argued that

Chrisjo misrepresented the nature of the interest conveyed by the PPM and led the

investors to believe that they were acquiring a property interest in the oil and gas

wells and the production from those wells on the existing lease in the Coquille Bay

Field in addition to the Pipeline Facilities. BTL further alleged that Chrisjo then

improperly transferred its interest in the Pipeline Facilities to Imperial Petroleum.

Specifically regarding the conversion claim, BTL alleged that “Defendant

Imperial has and continues to have wrongfully exercised dominion and control

over [BTL’s] interest in the Pipeline Facilities” and that “[t]he conversion by

Defendants Chrisjo, Cline and/or Imperial is, was and/or continues to be a

producing cause of Plaintiffs’ actual damages in excess of $140,000.”

1

Imperial Petroleum is not a party to this appeal.

4

Chrisjo answered with a general denial and asserted various affirmative

defenses, including the defense of limitations. Chrisjo also sought attorney’s fees

under the TTLA—Civil Practice and Remedies Code section 134.005—in its

second amended answer. Chrisjo later moved for leave to file a supplement to its

second amended answer seeking to add a claim for attorney’s fees under the

DTPA. The trial court did not immediately rule on this motion.

In August 2013, Chrisjo moved for summary judgment on the ground that

all of BTL’s claims against Chrisjo were barred by the applicable statutes of

limitations. The trial court denied the motion for summary judgment in October

2013.

The trial court conducted a bench trial on January 20 and 21, 2015. At the

start of the trial, the parties agreed on the record to submit the attorney’s fees

claims to the trial court based on affidavits and briefs at the conclusion of the trial.

BTL then nonsuited its TTLA claim, and Chrisjo argued that it was still entitled to

attorney’s fees. It reminded the trial court that it had sought leave to supplement its

pleadings with a claim for attorney’s fees under the DTPA, and it believed it was

entitled to those fees because “these claims were always groundless from the very

beginning.” BTL then stated that it was nonsuiting its DTPA claims. The trial court

stated that it would “take both issues under advisement” and rule at a later time.

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Finally, Imperial failed to appear at trial, so BTL requested a post-answer default

judgment against Imperial.

At trial, Cline testified that Chrisjo obtained a 75% ownership interest in the

Pipeline Facilities in exchange for obtaining the necessary investment money, and

Mideast Gas Systems retained a 25% ownership interest in the Pipeline Facilities.

Approximately twenty investors, including BTL, invested money in the project.

Chrisjo filed an assignment of interests in the property records of Plaquemines

Parish reflecting that BTL held an 8.75% ownership interest in the Pipeline

Facilities. Cline testified that tropical storms and hurricanes damaged the field on

various occasions throughout the relevant time period, halting production for

extended periods of time.

Cline testified that on March 6, 2009, he received an email informing him

that Imperial, the then-operator of the Coquille Bay Field, was suspending

payments of any and all pipeline fees due to problems that had arisen with the

Louisiana State Mineral Board Audit Committee. Cline stated that he provided

copies of this email to other investors, including BTL, and that he communicated

with both Imperial and officials with the state of Louisiana regarding the operation

of the Pipeline Facilities, but he was unable to obtain any kind of resolution.

Imperial expressed to Chrisjo and other investors an interest in purchasing

the Pipeline Facilities to consolidate the ownership and management of the

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Coquille Bay Field and the Pipeline Facilities. Accordingly, Cline testified that

Imperial and Chrisjo, along with other owners of the Pipeline Facilities, signed an

agreement setting forth the terms of a stock transfer, allowing the owners to trade

their interest in the Pipeline Facilities to Imperial in exchange for Imperial stock.

This agreement allowed each party to elect to join the transfer or decline.

According to Cline and to the documents admitted at trial, on November 30,

2010, Chrisjo signed an asset purchase agreement (“APA”) with Imperial, back-

dated to be effective November 1, 2010, giving Chrisjo until December 31, 2010,

to send out questionnaires to all of the investors to obtain their consent to convey

the 75% interest in the Pipeline Facilities controlled by Chrisjo and its fellow

investors, including BTL’s 8.75% interest. Cline testified that Chrisjo sent out the

necessary information and questionnaires to investors, including BTL. Cline

testified that all of the investors, including Chrisjo and Mideast Gas Systems,

participated in the sale except for BTL. Regarding the transfer of Chrisjo’s and its

other investors’ interests, Cline testified that they transferred “[s]eventy-five

percent minus [BTL’s] interest.” Cline testified that, as far as he was aware, BTL

still owned its interest in the Pipeline Facilities. He also stated that Chrisjo lost

money on the Pipeline Facilities deal and never saw a return on its investment.

BTL’s attorney asked Cline whether the APA “conveyed” to Imperial a 75%

ownership interest in the Pipeline Facilities, which would necessarily have

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included BTL’s interest, and Cline testified that the APA was not “a closing

instrument.” Under the terms of the APA, the closing was to take place on

December 31, 2010. Cline testified that Chrisjo and Imperial designated this

closing date because it “gave [Chrisjo] time to try to get the full 75 percent” and

that it had a verbal agreement with Imperial that Imperial would consummate the

deal even if Chrisjo could not get all of the investors to participate. Cline testified

that Chrisjo never represented to Imperial that it had obtained all of the investors’

consent to the sale, and Cline stated that he forwarded the questionnaires, including

BTL’s refusal to join, to Imperial “because [Imperial] had to make SEC filings.”

Cline also testified that neither he nor Chrisjo ever filed any deed or title

documents purporting to transfer BTL’s interest in the Pipeline Facilities to any

other party.

Cline also testified that, at the time of trial, the SEC was investigating

Imperial for wrongdoing and that the president of Imperial had also been indicted.

Chrisjo also presented accounting documents demonstrating that the money

invested by BTL and other investors was spent in development of the Pipeline

Facilities. Chrisjo also adduced evidence demonstrating that it had properly

disbursed all transportation fees owing to the owners of the Pipeline Facilities,

including BTL.

8

BTL did not present any documents at trial demonstrating the amount of

interest in the Pipeline Facilities actually conveyed at the closing in December

2010 between Chrisjo and Imperial. It did present a document, created by Imperial

and filed by Imperial with the SEC, in which Imperial claimed to have acquired

from Chrisjo its investors’ full 75% ownership in the Pipeline Facilities. This SEC

filing also contained some representations from a press release made by Imperial

that Imperial had sold its interest in the Coquille Bay Field, including the Pipeline

Facilities, to a third party.

Tom Elkins testified on behalf of Bacon Tomsons, Ltd. He testified that

Bacon Tomsons had invested $70,000 in the Pipeline Facilities and had received

less than $7,000 in return. Elkins testified that “early on” he understood that the

deal was to obtain an interest in the pipeline and did not include income from the

oil and gas production. Elkins testified that Bacon Tomsons did not receive any

distributions for transportation fees after 2008, and he did not know why the

distributions stopped. BTL presented evidence that the Coquille Bay Field had

produced oil and gas after that time, but Elkins also testified that he understood

that since 2009, “they barge it out of there rather than use[] a pipeline.” Elkins

agreed that Bacon Tomsons was not entitled to any transportation fees under its

interest in the Pipeline Facilities unless the pipeline was used to move the oil.

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Regarding the sale of the Pipeline Facilities to Imperial, Elkins testified that

Bacon Tomsons received the information and questionnaire from Chrisjo and

elected not to participate in the sale. Elkins further testified that the third party

purchaser of the Coquille Bay Field eventually recognized Bacon Tomsons’

ownership interest in the Pipeline Facilities and contacted Elkins regarding

“litigation pending on the ownership of the pipeline that he had purchased from

Imperial. And he knew that I was one of the—or Bacon Tomsons was one of the

owners.”

Regarding the ownership of the Pipeline Facilities at the time of trial, Elkins

testified: “I’m not sure what’s happened. I think they’ve swapped and traded and

moved and shoved and diluted and—until nobody knows what’s going on

anymore.” Elkins testified that he understood the assignment of interest reflecting

Bacon Tomsons’ ownership interest in the Pipeline Facilities had been filed in the

Plaquemines Parish property records, that he had not examined the real property

records to determine whether any subsequent assignment had been filed

transferring Bacon Tomsons’ interest to someone else, and that he had not hired a

landman or title company to perform a title search or otherwise give an opinion

about who owned the Pipeline Facilities as of the time of trial.

Larry Porter testified as a representative of BRL Oil and Gas. BRL invested

$17,500 in the Pipeline Facilities after hearing of the opportunity from Elkins.

10

Porter testified that BRL received distributions of fee revenue from Chrisjo

through 2008, but that the total amount of money generated from the investment

was small—approximately $1,650. Porter also acknowledged that he would not be

entitled to transportation fees for any oil and gas produced from the Coquille Bay

Field unless it was moved through the pipeline. He testified that, at the time BRL

entered into the deal with Chrisjo, he did not consider the possibility that a barge

could be used to transport the oil and gas produced in the field.

BRL, like Bacon Tomsons, knew of Imperial’s proposed purchase of the

Pipeline Facilities and had elected not to participate. Porter testified that, as of

November 2011, he still believed BRL owned an interest in the pipeline. Porter

testified that at the time of trial he was not sure whether BRL owned an interest in

the Pipeline Facilities, but he could not affirmatively state that BRL did not own it.

Porter had no contact with the third-party purchaser of Imperial’s interest in the

Pipeline Facilities and only learned of Imperial’s representations that it owned and

subsequently sold a 100% ownership interest in the Pipeline Facilities as a result of

the underlying litigation. Porter testified that he had not performed a title search or

otherwise examined the property records in Plaquemines Parish to determine the

current ownership of the Pipeline Facilities because there was no oil or gas coming

through the pipeline so it was not worth the money to investigate.

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Ferrell Munson also testified at trial. Munson personally invested $35,000 in

the Pipeline Facilities and received approximately $3,163.69 in return on his

investment. Munson testified at trial that he did not currently own an interest in the

Pipeline Facilities because “Mr. Cline sold it.” Munson based his belief that

Chrisjo sold his ownership interest in the Pipeline Facilities on the language in the

APA indicating that Chrisjo was transferring to Imperial a 75% ownership interest

in the Pipeline Facilities, which would necessarily have included Munson’s

interest. However, Munson had no personal knowledge regarding whether

Imperial’s purchase of the Pipeline Facilities finally closed under the terms of the

APA. Like Elkins and Porter, Munson never checked the property records in

Plaquemines Parish to identify the record owners of the Pipeline Facilities at the

time of trial. Munson did not know whether any oil or gas was being transported

through the pipeline at the time of trial.

Chrisjo moved for a directed verdict on BTL’s claims. The trial court did not

rule on the motion for directed verdict at that time. Chrisjo then presented its own

case, including the testimony of expert witness Charles Fife, who testified

regarding the nature of the transactions between Chrisjo and its investors and

between Chrisjo and Imperial.

At the close of trial on January 21, 2015, Chrisjo renewed its motion for

directed verdict and filed a bench brief on limitations, stating that it sought a

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directed verdict on the basis that all of BTL’s claims against it were barred by the

respective statutes of limitations. Regarding BTL’s conversion claim, Chrisjo

argued that BTL’s claim had accrued in 2004 when the investors entered into the

PPM, and thus the two-year limitations period had run well in advance of BTL’s

filing suit in 2012. Regarding the claim of conversion arising out of the 2010

transfer of its interest in the Pipeline Facilities to Imperial, Chrisjo argued in its

supplemental bench brief on its motion for directed verdict that

the parties involved in this transaction [Imperial and Chrisjo]

understood that Chrisjo did not yet own 75% of the Pipeline, but was

going to attempt to acquire the interest in the next 30 days. This fact is

clearly evidenced by the closing date in the Purchase Agreement. Id.

at § 1.01. Defendants’ expert, Charles Fife, testified this is common in

the oil and gas industry so that the seller can lock the buyer into a

fixed price for the maximum interest that is desired to be sold. When

the entire interest is not acquired (as in this case), the closing is

modified or does not happen. Defendants testified that is what

happened here.

Furthermore, Chrisjo argued that any misrepresentations in the APA were

made by it to Imperial, not to BTL. And Chrisjo argued that neither the 2010 APA

nor the 2012 SEC filing supported BTL’s claim for conversion against Chrisjo

because

[Cline] testified that Chrisjo and Imperial never closed on the sale of

[BTL’s] interest and that [its] interests were never sold. Whether

Imperial (who is currently under investigation by the SEC for making

fraudulent statements) misrepresented to the SEC that it owned the

Coquille Pipeline or not, that alleged misrepresentation did not

transfer title away from [BTL]. Indeed, [BTL] remain[s] the current

owners of record as nothing has ever been filed in the deed records

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transferring [BTL’s] interest to any other party. [BTL] admit[s] that

[it has] never performed a title search . . . and [does] not know

whether [it] still own[s] [its] interest in the Pipeline.

On February 11, 2015, Chrisjo filed its post-trial brief in support of its

request for a mandatory award of attorney’s fees in the amount of $52,353.95. It

argued that it was a prevailing party because BTL nonsuited claims, including its

DTPA and TTLA claims, to avoid an unfavorable ruling on the merits. Chrisjo also

attached evidence supporting its claim for attorney’s fees, including affidavits

regarding attorney’s fees, billing statements, and excerpts from the depositions of

Ferrell Munson, Thomas Elkins in his capacity as a representative for Bacon

Tomsons, and J. Larry Porter in his capacity as a representative for BRL Oil and

Gas.

In an affidavit attached as evidence to Chrisjo’s brief seeking attorney’s

fees, Chrisjo’s attorney averred that the $52,353.95 amount represented fees

expended in defending against BTL’s claims for breach of the DTPA and TTLA.

He stated that, “[t]o the extent possible, [Chrisjo has] properly segregated

recoverable from non-recoverable fees.” He further averred that all of the claims—

including those for violation of the TTLA and DTPA, conversion, and fraud—all

involved the same operative facts and shared common elements, stating,

As such, those discrete legal services that advance both recoverable

and non-recoverable claims are so intertwined that they cannot be

segregated. Similarly, to the extent services were rendered that were

necessary for all claims (e.g., requests for disclosures, proof of facts,

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depositions of primary actors, and motions for summary judgment),

those services have been properly included as they are not disallowed

simply because they do double service.

The billing statements attached as evidence supporting Chrisjo’s claim for

attorney’s fees included itemized billing showing the initials of the person

performing a particular service, a brief description of the service, the time spent,

the hourly rate, and the amount billed. These bills were redacted to protect

confidential information, and they also reflected that Chrisjo had deleted numerous

discrete legal services that, according to the attorney’s affidavit, were not

applicable to the recoverable claims. Chrisjo did not present any evidence of the

total amount of attorney’s fees it incurred in defending against BTL’s suit.

On February 24, 2015, the trial court signed a post-answer default judgment

awarding BTL damages from Imperial.

On March 4, 2015, the trial court denied Chrisjo leave to file its supplement

to its second amended answer—the pleading which sought to add a claim for

attorney’s fees under the DTPA. The trial court ordered the supplemental answer

stricken, leaving Chrisjo’s claim for attorney’s fees under the TTLA as its only

claim for attorney’s fees.

Also on March 4, 2015, the trial court signed its “Order Granting [Chrisjo’s]

Motion for Directed Verdict.” It stated,

It appears to the Court, having considered all the evidence and

subsequent briefing in the case, and the reasonable inferences flowing

15

from it, in the light most favorable to [BTL], that the evidence is

insufficient as a matter of law to entitle [BTL] to recover against

[Chrisjo], and the Court is of the opinion that judgment should be

rendered in favor of [Chrisjo] as a matter of law.

It ordered that BTL “take nothing by this action” against Chrisjo. This order did

not address Chrisjo’s claims for attorney’s fees under the TTLA, and it did not

purport to be a final judgment.

On March 18, 2015, Chrisjo moved for entry of an award of attorney’s fees

and for entry of final judgment in light of the order on its motion for directed

verdict. The trial court held a hearing on that motion, in which BTL argued that no

further rulings were necessary because the March 4 order disposed of all remaining

issues.

On July 8, 2015, the trial court signed an order awarding attorney’s fees to

Chrisjo in the amount of $24,829.42 based on its finding that Chrisjo was a

prevailing party under the TTLA because BTL “nonsuited [its] Theft Act claims to

avoid an unfavorable ruling on the merits.” The trial court also awarded

conditional attorney’s fees in the event of a subsequent appeal.

Also on July 8, 2015, Chrisjo filed an amended motion for entry of final

judgment, and the trial court set a hearing to occur on August 5, 2015. On August

5, 2015, BTL filed objections and a response to Chrisjo’s motion for entry of a

final judgment again arguing, in part, that the March 4 order disposed of all

pending claims.

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On August 7, 2015, the trial court signed its final judgment, incorporating

the post-answer default judgment against Imperial, the order granting a directed

verdict in favor of Chrisjo, and its ruling on Chrisjo’s claim for attorney’s fees

under the TTLA.

On August 11, 2015, BTL requested that the trial court file findings of fact

and conclusions of law, which the trial court never signed.

This appeal followed. BTL does not challenge the trial court’s ruling on any

of its causes of action except for its conversion claim against Chrisjo. BTL also

challenges the trial court’s award of attorney’s fees to Chrisjo as a prevailing party

under the TTLA.

Directed Verdict on Conversion Claim

In its fourth issue, BTL argues that the trial court erred in ruling that its

conversion claim was barred by limitations. We construe this as a complaint that

the trial court erred in granting Chrisjo’s motion for directed verdict on BTL’s

conversion claim.

A. Standard of Review

We review directed verdicts under the same legal-sufficiency standard that

applies to no-evidence summary judgments. City of Keller v. Wilson, 168 S.W.3d

802, 823–24 (Tex. 2005); see Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248

(Tex. 2013) (citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.

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2003)). We sustain a legal-sufficiency point when (1) there is a complete absence

of evidence regarding a vital fact, (2) rules of law or evidence preclude giving

weight to the only evidence offered to prove a vital fact, (3) the evidence offered to

prove a vital fact is no more than a scintilla, or (4) the evidence conclusively

establishes the opposite of the vital fact. Wilson, 168 S.W.3d at 810. We consider

the evidence in the light most favorable to the nonmovant, crediting evidence a

reasonable jury could credit and disregarding contrary evidence and inferences

unless a reasonable jury could not. Id. at 826. The nonmovant bears the burden to

identify evidence before the trial court that raises a genuine issue of material fact

as to each challenged element of its cause of action. See Johnson v. Brewer &

Pritchard, P.C., 73 S.W.3d 193, 206–07 (Tex. 2002).

A directed verdict is proper if a party “fails to present evidence raising a fact

issue essential to [its] right of recovery,” or if the party “admits or the evidence

conclusively establishes a defense to [its] cause of action.” Prudential Ins. Co. of

Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). We may affirm a

directed verdict on any ground that supports it. Exxon Corp. v. Breezevale Ltd., 82

S.W.3d 429, 443 (Tex. App.—Dallas 2002, pet. denied). However, if there is

evidence that raises a material fact issue on any theory of recovery, a directed

verdict is improper and the case must be reversed and remanded. See Cox v. S.

Garrett, L.L.C., 245 S.W.3d 574, 578 (Tex. App.—Houston [1st Dist.] 2007, no

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pet.) (citing Szczepanik v. First S. Tr. Co., 883 S.W.2d 648, 649 (Tex. 1994) (per

curiam)).

Conversion is the unauthorized and unlawful assumption and exercise of

dominion and control over the personal property of another to the exclusion of, or

inconsistent with, the owner’s rights. Freezia v. IS Storage Venture, LLC, 474

S.W.3d 379, 386 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citing Waisath

v. Lack’s Stores, Inc., 474 S.W.2d 444, 446 (Tex. 1971)). The elements of a

conversion cause of action are that: (1) the plaintiff owned, had legal possession of,

or was entitled to possession of the property; (2) the defendant assumed and

exercised dominion and control over the property in an unlawful and unauthorized

manner, to the exclusion of and inconsistent with the plaintiff’s rights; (3) the

plaintiff made a demand for the property; and (4) the defendant refused to return

the property. Freezia, 474 S.W.3d at 386–87; Alan Reuber Chevrolet, Inc. v. Grady

Chevrolet, Ltd., 287 S.W.3d 877, 888 (Tex. App.—Dallas 2009, no pet.). A

plaintiff can recover for the conversion of personal property such as rental income.

See Freezia, 474 S.W.3d at 387 (citing Hoenig v. Tex. Commerce Bank, N.A., 939

S.W.2d 656, 664 (Tex. App.—San Antonio 1996, no writ)) (holding that plaintiff

can recover for conversion of rental income); see also Hernandez v. Sovereign

Cherokee Nation Tejas, 343 S.W.3d 162, 175 (Tex. App.—Dallas 2011, pet.

denied) (“[A]n action will lie for conversion of money when its identification is

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possible and there is an obligation to deliver the specific money in question or

otherwise particularly treat specific money.”) (quoting Houston Nat’l Bank v.

Biber, 613 S.W.2d 771, 774 (Tex. Civ. App.—Houston [14th Dist.] 1981, writ

ref’d n.r.e.)). However, Texas does not recognize conversion claims for real

property. See Freezia, 474 S.W.3d at 386 (stating that conversion involves

unlawful exercise of control over personal property); Lucio v. John G. & Marie

Stella Kennedy Mem’l Found., 298 S.W.3d 663, 672 (Tex. App.—Corpus Christi

2009, pet. denied) (observing that Texas law does not recognize cause of action for

conversion of real property).

B. Analysis

Although Chrisjo stated that its motion for directed verdict was based on

arguments that all of BTL’s claims were barred by the applicable statute of

limitations, its motion also addressed the sufficiency of BTL’s evidence on its

conversion claim. It is unclear from BTL’s pleadings and evidence at trial whether

its conversion claim was based on an alleged conversion of BTL’s money invested

in the Pipeline Facilities, conversion of BTL’s ownership interest in the Pipeline

Facilities, or conversion of the transportation fees that owners of the Pipeline

Facilities were entitled to collect. Assuming without deciding that these property

interests are property that can be converted, we agree with Chrisjo that BTL failed

to provide any evidence of conversion.

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Chrisjo argued that the only evidence presented by BTL to support the

conversion claim is insufficient because it did not demonstrate that BTL’s property

was ever actually transferred to Imperial or that Chrisjo otherwise assumed and

exercised dominion and control over the property in an unlawful and unauthorized

manner. Chrisjo also argued that BTL failed to provide any evidence, in the form

of a title search or other investigation of the real property records, identifying the

record owners of the Pipeline Facilities at the time of trial. The trial court granted

the motion for directed verdict, stating that it had considered all of the evidence

and briefing in the case and that it had determined “that the evidence is insufficient

as a matter of law.”

At trial, BTL presented no evidence that Chrisjo had assumed and exercised

dominion and control over the money invested in the Pipeline Facilities, its interest

in the Pipeline Facilities, or the transportation fees owing to it as owners of the

Pipeline Facilities in an unlawful and unauthorized manner, to the exclusion of and

inconsistent with BTL’s rights. See Alan Reuber Chevrolet, 287 S.W.3d at 888

(setting out elements of conversion). BTL presented no evidence that the money it

invested in the Pipeline Facilities was misused, and it provided no evidence

rebutting Chrisjo’s evidence accounting for all of the funds that were invested in

the project. In fact, BTL representatives testified that, as far as they were aware,

they still owned an interest in the Pipeline Facilities at the time of trial, and they

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acknowledged that they never performed a title search or other examination of the

real property records to determine whether their ownership interest had ever been

transferred to Imperial. Elkins, Porter, and Munson each testified that they were

aware at or near the time of their 2004 investment that they were receiving only an

interest in the Pipeline Facilities; that they in fact received the only disbursements

of fees that they were entitled to under the terms of their assignment of interests;

and that, as far as they were aware, they still remained the record owners of their

interest in the Pipeline Facilities even though the Coquille Bay Field operators had

ceased using the pipeline in 2008. Elkins, Porter, and Munson all testified that they

received disbursements of transportation fees through 2008. Elkins testified that he

was aware that, after 2008, the Coquille Bay Field operator had been using barges

rather than the pipeline to move the oil and gas, and he agreed that the owners of

the Pipeline Facilities were not entitled to transportation fees unless the operator

used the pipeline.

Although the 2010 APA states that Chrisjo offered Imperial a 75%

ownership interest in the Pipeline Facilities, this document was not a title

instrument and did not serve to actually transfer any rights to the Pipeline

Facilities, and thus, necessarily, Chrisjo did not misappropriate any funds or fees

related to the Pipeline Facilities. The agreements between Chrisjo and Imperial

allowed for each investor to consider the terms of the offer and elect whether it

22

wanted to participate in the transaction. Cline testified that when BTL refused to

participate in the sale, under the terms of the APA the remaining owners

transferred their interests in the Pipeline Facilities and left BTL’s interests

undisturbed. Cline stated that Chrisjo never filed any documents transferring

BTL’s interest in the Pipeline Facilities. BTL presented no evidence contradicting

this testimony, nor did it present any evidence establishing that Chrisjo actually

transferred its ownership interest. Furthermore, any representations by Imperial in

its SEC filing that it owned a 100% ownership interest in the Pipeline Facilities are

irrelevant to BTL’s conversion claim against Chrisjo. Because BTL failed to

present any evidence raising a fact issue regarding whether Chrisjo had assumed

and exercised dominion and control over any personal property of BTL’s in an

unlawful and unauthorized manner, to the exclusion of and inconsistent with

BTL’s rights, the trial court’s directed verdict on the conversion claim was proper.

See Prudential Ins. Co., 29 S.W.3d at 77; see also Exxon Corp., 82 S.W.3d at 443

(holding that we may affirm directed verdict on any ground that supports it).

We overrule BTL’s fourth issue on appeal.

Jurisdiction of Trial Court to Enter August 7, 2015 Judgment

In its first issue, BTL argues that the trial court lacked jurisdiction to render

its July 8, 2015 order awarding attorney’s fees to Chrisjo and its August 7, 2015

final judgment because its plenary power had expired. BTL argues that the trial

23

court’s March 4, 2015 order granting Chrisjo’s motion for directed verdict was

“presumed final despite the pending request for attorneys’ fees as sanctions made

in [Chrisjo’s] post-trial brief filed before the judgment was signed.”

A. Legal Standard

There can be only one final judgment in this cause. See TEX. R. CIV. P. 301.

Generally, a judgment is final when it “actually disposes of all claims and parties

then before the court, regardless of its language, or it states with unmistakable

clarity that it is a final judgment as to all claims and all parties.” Lehmann v. Har–

Con Corp., 39 S.W.3d 191, 192–93 (Tex. 2001). An appellate court determines the

finality of a judgment by the language of the judgment. Id. at 199.

In the absence of a contrary showing in the record, a judgment rendered after

a conventional trial on the merits carries a presumption of finality. See Houston

Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986)

(orig. proceeding); N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897–98

(Tex. 1966) (“When a judgment, not intrinsically interlocutory in character, is

rendered and entered in a case regularly set for a conventional trial on the merits,

no order for a separate trial of issues having been entered . . . it will be presumed

for appeal purposes that the Court intended to, and did, dispose of all parties

legally before it and of all issues made by the pleadings between such parties.”).

Otherwise, no such presumption arises. Lehmann, 39 S.W.3d at 199–200; see also

24

Aldridge, 400 S.W.2d at 898 (concluding, “in the absence of a contrary showing in

the record,” that judgment entered after case was set for conventional trial on the

merits was presumed final for purposes of appeal); Exxon Corp. v. Garza, 981

S.W.2d 415, 419 (Tex. App.—San Antonio 1998, pet. denied) (stating that

presumption of finality recognized in Aldridge “only applies . . . in the absence of a

contrary showing in the record”). “If there is any doubt as to the judgment’s

finality, then finality must be resolved by a determination of the intention of the

court as gathered from the language of the decree and the record as a whole, aided

on occasion by the conduct of the parties.” Vaughn v. Drennon, 324 S.W.3d 560,

563 (Tex. 2010) (per curiam) (quoting Lehmann, 39 S.W.3d at 203) (internal

quotation marks, bracketing, and capitalization omitted).

BTL argues, in part, that its nonsuit of its TTLA claim against Chrisjo

resolved Chrisjo’s related claim for attorney’s fees under the TTLA. Texas Rule of

Civil Procedure 162 provides:

At any time before the plaintiff has introduced all of his evidence

other than rebuttal evidence, the plaintiff may dismiss a case, or take a

non-suit, which shall be entered in the minutes. . . .

Any dismissal pursuant to this rule shall not prejudice the right

of an adverse party to be heard on a pending claim for affirmative

relief or excuse the payment of all costs taxed by the clerk. A

dismissal under this rule shall have no effect on any motion for

sanctions, attorney’s fees or other costs, pending at the time of

dismissal, as determined by the court.

25

TEX. R. CIV. P. 162. A plaintiff’s decision about which of its claims to pursue or

abandon does not control the fate of a nonmoving party’s independent claims for

affirmative relief. Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008); Alan

Reuber Chevrolet, 287 S.W.3d at 887. Specifically, a plaintiff’s nonsuit cannot

extinguish a defendant’s counterclaim for costs and attorney’s fees. Villafani, 251

S.W.3d at 469; Alan Reuber Chevrolet, 287 S.W.3d at 887; see also Referente v.

City View Courtyard, L.P., 477 S.W.3d 882, 886 (Tex. App.—Houston [1st Dist.]

2015, no pet.) (holding that nonsuit “has no effect on any motion for attorney’s

fees or other costs pending at the time of dismissal”); Dean Foods Co. v. Anderson,

178 S.W.3d 449, 453 (Tex. App.—Amarillo 2005, pet. denied) (“A request for

attorney’s fees is a claim for affirmative relief.”).

B. Analysis

Here, Chrisjo’s request for attorney’s fees was not, as BTL suggests, based

on a motion for sanctions. BTL pleaded a cause of action for violations of the

TTLA, and Chrisjo filed an answer denying the claim and asserting a claim for

attorney’s fees pursuant to the TTLA. On the day of trial, prior to presenting its

case-in-chief, BTL nonsuited its TTLA claim, and Chrisjo argued at trial and in a

post-trial motion and briefing that it was entitled to “prevailing party” attorney’s

fees because BTL had nonsuited the TTLA claim to avoid an unfavorable ruling on

the merits. At the beginning and close of evidence at trial, the parties agreed on the

26

record that they would submit evidence and briefing on the issue of attorney’s fees

to the trial court post-trial. Thus, at the time BTL non-suited its TTLA claim,

Chrisjo had a pending claim for attorney’s fees. See Villafani, 251 S.W.3d at 469.

BTL argues that Chrisjo’s pending “request for sanctions” was not a claim

for affirmative relief that was independent of BTL’s nonsuited claim; however,

Texas courts have held that “[a]n affirmative claim, stated in an answer, for

recovery of attorney’s fees for preparation and prosecution of a defense constitutes

a counterclaim.” In re C.A.S., 128 S.W.3d 681, 686 (Tex. App.—Dallas 2003, no

pet.); In re Frost Nat’l Bank, 103 S.W.3d 647, 650 (Tex. App.—Corpus Christi

2003, no pet.); see also Villafani, 251 S.W.3d at 469 (holding that “a plaintiff’s

nonsuit cannot extinguish a defendant’s counterclaim for costs and attorney’s

fees”); Nolte v. Flournoy, 348 S.W.3d 262, 267 (Tex. App.—Texarkana 2011, pet.

denied) (claim for attorney’s fees included in defendant’s answer was considered

to be counterclaim seeking affirmative relief). A defendant’s claim for attorney’s

fees under the TTLA is one that can survive past the resolution of the plaintiff’s

claim. See, e.g., Epps v. Fowler, 351 S.W.3d 862, 866 (Tex. 2011) (stating that

“prevailing party” may include defendant who successfully defends against claim

and that defendant may still be “prevailing party” after plaintiff’s nonsuit under

some circumstances); Arrow Marble, LLC v. Estate of Killion, 441 S.W.3d 702,

706 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (recognizing that “[c]ourts

27

have held that the phrase ‘prevailing party’ in section 134.005(b) of the TTLA

includes both a plaintiff successfully prosecuting a theft suit and a defendant

successfully defending against one” and analyzing effect of dismissal of plaintiff’s

claim on defendant’s status as “prevailing party”). We conclude that Chrisjo’s

claim for attorney’s fees here was a claim for affirmative relief that was not

disturbed by BTL’s nonsuit.

BTL also argues that even if the request for attorney’s fees was an

independent claim for affirmative relief, the March 4 order was still final under the

Aldridge presumption. See Aldridge, 400 S.W.2d at 898 (holding that judgments

rendered after conventional trial on merits carry presumption of finality). However,

the record here rebuts any presumption of finality. See, e.g., Vaughn, 324 S.W.3d

at 563 (stating that presumption of finality applies “unless a trial court orders a

separate trial to resolve a specific issue”); Aldridge, 400 S.W.2d at 898 (presuming

judgment following setting for trial on merits is final “in the absence of a contrary

showing in the record”).

The trial court’s March 4 order does not purport to be a judgment—much

less a final judgment—and it does not contain any language demonstrating that it

was intended to be final: it does not state that it is a final judgment or intended to

be appealable; it does not incorporate the trial court’s previous post-answer default

judgment against Imperial Petroleum; and it does not contain a “Mother Hubbard”

28

clause disposing of claims not specifically mentioned. Rather, the March 4 order is

styled as an “Order Granting Defendant’s Motion for Directed Verdict,” and the

language of the order granted Chrisjo’s motion for directed verdict and disposed

only of the issues addressed in that motion. It does not address or dispose of

Chrisjo’s pending claim for attorney’s fees or award costs. Accordingly, it was not

final. See Epps, 351 S.W.3d at 868 (holding that nonsuit does not affect any

pending claim for affirmative relief or motion for attorney’s fees or sanctions);

Lehmann, 39 S.W.3d at 192–93 (holding that judgment is final for purposes of

appeal “if and only if either it . . . actually disposes of all claims and parties then

before the court, regardless of its language, or it states with unmistakable clarity

that it is a final judgment as to all claims and all parties”).2 The trial court

continued to accept briefing from the parties and enter orders until it rendered its

August 7, 2015 judgment, entitled “Final Judgment,” that incorporated all of its

previous rulings and finally disposed of all of the claims of all of the parties.

We conclude that the March 4 order was not a final judgment. That order

granted Chrisjo’s motion for a directed verdict, but did not address the pending

2

BTL also argues that any agreement by the parties to try attorney’s fees after

March 4, 2015 could not extend the trial court’s jurisdiction beyond the limits

provided by Rule of Civil Procedure 329b and that Chrisjo’s post-judgment

motions would not have extended the trial court’s plenary power to encompass the

July 8, 2015 order awarding attorney’s fees and the August 7, 2015 final

judgment. Because we conclude that the March 4, 2015 order was not final and

that the final judgment was rendered on August 7, 2015, when the trial court

finally disposed of all claims and all parties, we need not address these

contentions.

29

claim for attorney’s fees. The trial court rendered its final judgment on August 7,

2015, as that was a judgment that finally disposed of all claims and parties.

Accordingly, the trial court retained jurisdiction to render its order granting

attorney’s fees and its August 7 judgment.

We overrule BTL’s first issue.

Award of Attorney’s Fees

In its second and third issues, BTL argues that the trial court erred in

awarding Chrisjo attorney’s fees under the TTLA.

A. Standard of Review

The availability of attorney’s fees under a particular statute is a question of

law that we review de novo. Arrow Marble, 441 S.W.3d at 705. TTLA section

134.005(b) provides that “[e]ach person who prevails in a suit under this chapter

shall be awarded court costs and reasonable and necessary attorney’s fees.” TEX.

CIV. PRAC. & REM. CODE ANN. § 134.005(b) (West Supp. 2015); Arrow Marble,

441 S.W.3d at 705. The award of fees to a prevailing party in a TTLA action is

mandatory. Arrow Marble, 441 S.W.3d at 705 (citing Bocquet v. Herring, 972

S.W.2d 19, 20 (Tex. 1998)). Although the TTLA does not define the phrase

“prevailing party,” Texas courts, including this Court, have held that both a

plaintiff successfully prosecuting a theft suit and a defendant successfully

defending against one can be considered prevailing parties under the TTLA. Arrow

30

Marble, 441 S.W.3d at 706; see Epps, 351 S.W.3d at 866–70 (construing written

contract to give meaning to term “prevailed” and setting out circumstances under

which defendant may be considered to have prevailed).

A defendant is generally not a prevailing party when the plaintiff nonsuits its

claims without prejudice. Epps, 351 S.W.3d at 869; BBP Sub I LP v. DiTucci, No.

05-12-01523-CV, 2014 WL 3743669, at *3 (Tex. App.—Dallas July 29, 2014, no

pet.) (mem. op.) (applying reasoning in Epps to claim for attorney’s fees under

TTLA). However, the supreme court in Epps looked with disfavor upon “nonsuits

that are filed to circumvent unfavorable legal restrictions or rulings” and held that

“a defendant may be a prevailing party when a plaintiff nonsuits without prejudice

if the trial court determines, on the defendant’s motion, that the nonsuit was taken

to avoid an unfavorable ruling on the merits.” 351 S.W.3d at 870; Referente, 477

S.W.3d at 886; DiTucci, 2014 WL 3743669, at *3.

Courts make the determination of whether a plaintiff nonsuited in order to

avoid an unfavorable ruling “based upon inferences drawn from the course of

events in the lawsuit.” Epps, 351 S.W.3d at 870 (“[C]ourts should rely as far as

possible on the existing record and affidavits, and resort to live testimony only in

rare instances.”). “A number of factors may support an inference that a plaintiff has

nonsuited in order to avoid an unfavorable ruling,” including the timing of the

nonsuit, the plaintiff’s unexcused failure to obtain discovery of evidence that might

31

disprove its claim, or the existence of other procedural obstacles, such as the

inability to join necessary parties. Id. at 870–71; Referente, 477 S.W.3d at 886. The

supreme court also stated:

On the other hand, as we have noted, it is reasonable to presume that

the parties did not intend to encourage continued litigation when

discovery reveals previously unknown flaws in the plaintiff’s claims.

Accordingly, evidence that the suit was not without merit when filed

may indicate that the defendant has not prevailed and is therefore not

entitled to attorney’s fees.

Epps, 351 S.W.3d at 871.

“[W]hether a party nonsuited to avoid an unfavorable ruling is a question of

fact,” and “the trial court’s finding on that issue may be challenged on the ground

that it is not supported by sufficient evidence.” Referente, 477 S.W.3d at 885.

“Accordingly, we will review the trial court’s determination under Epps for an

abuse of discretion, deferring to factual findings that are supported by some

evidence, but reviewing legal questions de novo.” Id. at 886.

B. Prevailing Party

In its second issue, BTL argues that the trial court erred in awarding Chrisjo

attorney’s fees because Chrisjo was not a prevailing party under the TTLA.

Specifically, it argues that it nonsuited its TTLA claim without prejudice and that

the evidence was legally and factually insufficient to establish that it nonsuited to

avoid an unfavorable ruling on the merits. Chrisjo argues that the timing of the

32

nonsuit and the evidence adduced at trial support a conclusion that BTL nonsuited

its TTLA claim to avoid an unfavorable ruling on the merits.

Here, the trial court found that BTL took the nonsuit to avoid an unfavorable

ruling on the merits. The record indicates that BTL filed its TTLA claim in March

2012 and nonsuited it at trial in January 2015, thereby requiring Chrisjo to expend

effort and attorney’s fees in defending against that claim for nearly three years.

BTL took its nonsuit on the day the bench trial began, but it did not nonsuit its

related claim for conversion, which does not allow for the recovery of attorney’s

fees. When Chrisjo reminded the trial court that it still had pending claims for

attorney’s fees under the DTPA as well, BTL nonsuited its DTPA claim, but did

not nonsuit its related fraud claims, which did not allow for the recovery of

attorney’s fees. BTL provided no explanation for its decision to nonsuit the TTLA

and DTPA claims but not the related conversion and fraud claims.

Furthermore, the evidence at trial demonstrated that BTL failed to procure

evidence that would have demonstrated whether Chrisjo misused or

misappropriated any funds or other property interests. The TTLA “permits a civil

cause of action for damages against a party who commits theft via any of the

numerous methods defined under the Texas Penal Code.” Cluck v. Mecom, 401

S.W.3d 110, 117 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); see TEX.

CIV. PRAC. & REM. CODE ANN. § 134.003 (“A person who commits theft is liable

33

for the damages resulting from the theft.”); id. § 134.002(2) (defining “theft” as

unlawful appropriation of property or unlawfully obtaining services as defined in

Texas Penal Code chapter 31).

As with BTL’s claim for conversion, neither the pleadings nor the evidence

clearly states whether BTL’s theft claim was based on Chrisjo’s alleged theft of

BTL’s money invested in the Pipeline Facilities, theft of the transportation fees, or

theft of some other interest in the Pipeline Facilities. Assuming, without deciding,

that these complaints can properly form the basis of a TTLA claim, BTL failed to

obtain any of the evidence necessary to support its claim that Chrisjo committed

theft of BTL’s funds or other interest in the Pipeline Facilities. According to

Cline’s testimony and other evidence adduced by Chrisjo, the money invested by

BTL was used according to its agreed purpose in developing the Pipeline Facilities

and Chrisjo properly recorded BTL’s interest in the Pipeline Facilities in the

Plaquemines Parish property records. Chrisjo also presented evidence that all

transportation fees were properly dispersed and that no documents that transferred

BTL’s interest in the Pipeline Facilities were ever executed or recorded. BTL

offered no explanation for this failure to obtain actual proof of the ownership of the

Pipeline Facilities, other than Munson’s testimony that he did not believe hiring a

title company was worth the money. None of the BTL representatives explained

why they were unable to review the property records themselves. Thus, the record

34

contains evidence of BTL’s unexcused failure to complete discovery of evidence

that could support entry of an adverse judgment—i.e., evidence from the property

records demonstrating that BTL still owned property that was the subject of its

theft claim. See Epps, 351 S.W.3d at 871. Accordingly, the timing of the nonsuit

and other inferences drawn from the course of events in the lawsuit support the

trial court’s finding. See id. at 870.

BTL also argues that Chrisjo failed to establish that the TTLA claim was

meritless when filed and, thus, did not establish that BTL nonsuited to avoid an

unfavorable ruling on the merits. BTL relies on the fact that its claim survived

Chrisjo’s motion for summary judgment on limitations grounds. However, BTL’s

argument that its TTLA claim was not time barred is not the equivalent of evidence

that its suit was “not without merit when filed” but was subsequently revealed to

have unknown flaws. See id. at 871. BTL presented no evidence or argument

demonstrating that it conducted appropriate discovery of the TTLA claim that

revealed flaws in its suit. On the contrary, the evidence in the record demonstrates

that BTL’s TTLA claim against Chrisjo was meritless and that BTL had in its

possession—prior to its filing of suit—the information it needed to determine that

Chrisjo did not commit theft.

BTL asserted that Chrisjo committed civil theft or conversion by misusing

its investment in the Pipeline Facilities and by selling its interest in the Pipeline

35

Facilities to Imperial, but BTL presented no evidence that such misuse or improper

sale ever occurred. Elkins, Porter, and Munson each testified that they were aware

at or near the time of their 2004 investment that they were receiving only an

interest in the Pipeline Facilities; that they in fact received the only disbursements

of fees that they were entitled to under the terms of their assignment of interests;

and that, as far as they were aware, they still remained the record owners of their

interest in the Pipeline Facilities even though the Coquille Bay Field operators had

ceased using the pipeline in 2008. Elkins, Porter, and Munson all testified that they

received disbursements of transportation fees through 2008. Elkins testified that he

was aware that since 2008 the Coquille Bay Field operator had been using barges

rather than the pipeline to move the oil and gas, and he agreed that the owners of

the Pipeline Facilities were not entitled to transportation fees unless the operator

used the pipeline facilities. As discussed above, BTL presented no evidence to

support its conversion claim against Chrisjo, and it does not challenge the trial

court’s take-nothing judgment on all of its remaining claims.

Accordingly, we cannot conclude that the trial court abused its discretion in

concluding that Chrisjo was a prevailing party under the TTLA. See Referente, 477

S.W.3d at 885–86.

We overrule BTL’s second issue.

36

C. Segregation of Fees

In its third issue, BTL argues, in the alternative, that Chrisjo did not properly

segregate its attorney’s fees for defending against the TTLA claim.

A prevailing party entitled to attorney’s fees is required to “segregate fees

between claims for which they are recoverable and claims for which they are not.”

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006); Arrow

Marble, 441 S.W.3d at 709. “The need to segregate attorneys’ fees is a question of

law, while the extent to which claims can or cannot be segregated is a mixed

question of law and fact.” Penhollow Custom Homes, L.L.C. v. Kim, 320 S.W.3d

366, 374 (Tex. App.—El Paso 2010, no pet.). “The award of attorney’s fees

generally rests in the sound discretion of the trial court.” El Apple I, Ltd. v. Olivas,

370 S.W.3d 757, 761 (Tex. 2012) (citing Ragsdale v. Progressive Voters League,

801 S.W.2d 880, 881 (Tex. 1990) (per curiam)).

BTL argues that Chrisjo “failed to properly segregate recoverable from non-

recoverable attorney’s fees” because the affidavits and billing statements “fail to

adequately segregate the fees attributable to defense of [BTL’s] TTLA claims,

which were based entirely on the sale of the Pipeline Facilities to Imperial in

November 2010, from fees incurred in defending [BTL’s] fraud, negligent

misrepresentation, DTPA, Texas Securities Act, statutory stock fraud, conversion

and breach of fiduciary duty claims.” BTL asserts that “many of the time records

37

included in the fee affidavit pertain to claims based on misrepresentations made at

the time of [BTL’s] original investment and the interpretation of the PPM, which

are not relevant in the least to the TTLA claims.”

Chrisjo argues that it properly segregated its attorney’s fees incurred in

defending against the TTLA claim. When it submitted its evidence on attorney’s

fees to the trial court, Chrisjo was seeking attorney’s fees under both the DTPA

and the TTLA. Chrisjo submitted billing statements that showed only certain

discrete legal services were included in its calculation of recoverable attorney’s

fees. Its attorney presented an affidavit in which he averred that, “[t]o the extent

possible, [Chrisjo has] properly segregated recoverable from non-recoverable fees”

and that Chrisjo’s defense against the TTLA and DTPA claims involved the same

operative facts and essentially identical analysis as its defense against the related

conversion and fraud claims.

Chrisjo disagrees with BTL’s argument that its TTLA claim was “based

entirely on the sale of the Pipeline Facilities to Imperial in November 2010,” and

thus none of Chrisjo’s attorney’s fees incurred in addressing any theft allegations

arising out the original 2004 investment were proper. We agree with Chrisjo that

BTL’s pleadings and the other record evidence indicate that BTL accused Chrisjo

generally of theft and conversion, among other causes of action, relating to

Chrisjo’s conduct beginning in 2004 and continuing until 2010.

38

BTL further complains that Chrisjo could not reasonably claim that discrete

legal services contained in the attorney’s fees calculation were all necessary to

address the TTLA claim. Chrisjo stated that “those discrete legal services that

advance both recoverable and non-recoverable claims are so intertwined that they

cannot be segregated” and that those identified legal services “were necessary for

all claims (e.g., requests for disclosures, proof of facts, depositions of primary

actors, and motions for summary judgment),” and so were included in its request

for fees because “they are not disallowed simply because they do double service.”

See Chapa, 212 S.W.3d at 313 (“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.”). However, the court in Chapa stated that while

attorneys do not “have to keep separate time records” when they draft petitions or

provide other services that advance both recoverable and nonrecoverable claims, it

is still appropriate to provide “an opinion . . . that, for example, 95 percent of their

drafting time would have been necessary even if there had been no

[nonrecoverable] claim.” Id. at 314. Chrisjo provided no such evidence regarding

the percentage of its attorney’s work that would have been necessary for certain

39

discrete legal services even if no nonrecoverable claims had been advanced,

arguing instead that all of those remaining services would have been necessary to

address the recoverable claims.

However, BTL’s argument that Chrisjo failed to identify the percentage of

those discrete legal services that were attributable solely to the TTLA claim

ignores the role of the trial court as a fact finder here and the standard of review for

evaluation of the sufficiency of the evidence. See id. (“But when, as here, it cannot

be denied that at least some of the attorney’s fees are attributable only to claims for

which fees are not recoverable, segregation of fees ought to be required and the

jury ought to decide the rest.”); Kim, 320 S.W.3d at 374 (holding that extent to

which claims can or cannot be segregated is mixed question of law and fact); see

also El Apple, 370 S.W.3d at 763–64 (holding that evidence is sufficient to support

amount of attorney’s fees awarded when claimant presented evidence of services

performed, who performed them and at what hourly rate, when they were

preformed, and how much time work required). The appropriate question here is

whether the evidence was sufficient to support the trial court’s award of

$24,829.42 as TTLA attorney’s fees.

Chrisjo did segregate its attorney’s fees by eliminating from its claim the

fees attributable to services rendered on nonrecoverable claims, and it sought

$52,353.95, based on its attorney’s affidavit that the remaining services were

40

essentially all necessary to defend against the TTLA and DTPA claims. The trial

court considered this evidence—including detailed, itemized billing statements that

set out the exact tasks performed, the people who performed the tasks and their

hourly rates, and the amount of time involved—and, after determining that Chrisjo

was not entitled to any fees under the DTPA because of the stricken supplemental

pleading, awarded Chrisjo less than half of the fees its sought, or $24,829.42. Thus,

the trial court impliedly found not credible the attorney’s testimony that “those

discrete legal services that advance both recoverable and non-recoverable claims

are so intertwined that they cannot be segregated,” and awarded less than the full

requested amount of fees. See El Apple, 370 S.W.3d at 763–64; see also Messier v.

Messier, 458 S.W.3d 155, 166–67 (Tex. App.—Houston [14th Dist.] 2015, no pet.)

(holding that, in determining amount of attorney’s fees, trial court “can consider

the entire record, the evidence presented on reasonableness, the amount in

controversy, the common knowledge of the participants as lawyers and judges, and

the relative success of the parties”).

Accordingly, we conclude that Chrisjo presented segregated evidence of its

attorney’s fees, and the trial court did not abuse its discretion in considering the

record and determining the amount of the award here. El Apple, 370 S.W.3d 763–

64; Messier, 458 S.W.3d at 166–67.

We overrule BTL’s third issue on appeal.

41

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Brown, and Huddle.

42