Xiangxiang Tang v. Klaus Wiegand

ACCEPTED

01-15-00163-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

9/21/2015 2:49:51 PM

CHRISTOPHER PRINE

CLERK

CASE NO. 01-15-00163-CV

IN THE FIRST COURT OF APPEALS FILED IN

1st COURT OF APPEALS

HOUSTON, TEXAS

9/21/2015 2:49:51 PM

XIANGXIANG TANG CHRISTOPHER A. PRINE

Clerk

Appellant

V.

KLAUS WIEGAND

Appellee

ON APPEAL FROM THE 268TH DISTRICT COURT OF

FORT BEND COUNTY, TEXAS,

THE HONORABLE JOHN HAWKINS PRESIDING

BRIEF OF APPELLANT

XIANGXIANG TANG

WAUSON ♦ PROBUS

John Wesley Wauson

Texas Bar No. 20988200

jwwauson@w-plaw.com

One Sugar Creek Center Blvd., Suite 880

Sugar Land, Texas 77478

(281) 242-0303 (Telephone)

(281) 242-0306 (Telecopy)

Attorneys for Appellant

IDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 38.1(a), TEX. R. APP. P., the following is a complete list of

the names of all parties interested in the outcome of this Case:

Appellant: Xiangxiang Tang

Appellant’s Trial

and Appellate Counsel: John Wesley Wauson

Wauson ♦ Probus

One Sugar Creek Center Blvd., Suite 880

Sugar Land, Texas 77478

Appellee: Klaus Wiegand

Appellee’s Trial

and Appellate Counsel: John P. Venzke

The Venzke Law Firm

Post Office Box 667485

Houston, Texas 77266-7485

i

TABLE OF CONTENTS

Page

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

APPELLANTS’ POINT OF ERROR ONE: The trial court

erred in failing to enter Judgment that Wiegand have and

recover nothing against Tang on the Texas Theft Liability Act

claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

APPELLANTS’ POINT OF ERROR TWO: The trial court

erred in failing to award a judgment for attorney’s fees to

Xiangxiang Tang as a successful party under the Texas Theft

Liability Act, §134.005(2)(b) against Klaus Wiegand who

unsuccessfully brought claims . . . . . . . . . . . . . . . . . . . . . . . . 4

APPELLANTS’ POINT OF ERROR THREE: The trial court

erred when it failed to award Plaintiff attorney’s fees against

Klaus Wiegand for trial of this case in defense of the TTLA

claims based on the uncontroverted evidence of such fees . . . 9

APPELLANTS’ POINT OF ERROR FOUR: The court erred

in not granting Plaintiff a new trial because failure to award

Plaintiff any trial attorney’s fees against Klaus Wiegand under

ii

the evidence, pleadings of the parties, and the matters in issue,

is against the great weight and preponderance of the evidence

and would be inconsistent with conclusive evidence of some

amount of such fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attached

Tab 1 Judgment signed November 24, 2014

Tab 2 Jury Charge and Verdict

Tab 3 Moak v. Huff, No. 04-11-00184-CV, 2012 Tex. App. LEXIS

1245 (Tex. App.–San Antonio February 15, 2012)

iii

INDEX OF AUTHORITIES

Cases Page

7979 Airport Garage, L.L.C. v. Dollar Rent A Car Sys., Inc.,

245 S.W.3d 488, 509 (Tex. App.—Houston [14th Dist.]

2007, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Air Routing Int'l Corp. (Canada) v. Britannia Airways, Ltd.,

150 S.W.3d 682, 686 (Tex. App.—Houston [14th Dist.]

2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Arrow Marble, LLC v. Killion,

441 S.W.3d 702, (Tex.App.—Houston [1st Dist.] 2014) . . . 9

Beach v. Resolution Trust Corp.,

821 S.W.2d 241, 245 (Tex. App.—Houston [1st Dist.]

1991, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Bocquet v. Herring,

972 S.W.2d 19, 20 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . 7

Brown v. Kleerekoper,

2013 Tex. App. LEXIS 2122 (Tex.App.—Houston

[1st Dist.] Mar. 5, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Dow Chem. Co. v. Francis,

46 S.W.3d 237, 242 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . 13

Englander Co. v. Kennedy,

428 S.W.2d 806, 807 (Tex. 1968) . . . . . . . . . . . . . . . . . . . . . 4

Glover v. Tex. Gen. Indem. Co.,

619 S.W.2d 400, 401-02 (Tex. 1981) . . . . . . . . . . . . . . . . . . . 13

Holland v. Wal-Mart Stores, Inc.,

1 S.W.3d 91, 94 (Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 4

In re American Homestar of Lancaster, Inc.,

50 S.W.3d 480,483 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . 4

iv

Cases: Page

In re Moers,

104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.]

2003, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Moak v. Huff,

No. 04-11-00184-CV, 2012 Tex. App. LEXIS 1245

(Tex. App.– San Antonio February 15, 2012) . . . . . . . . . . . . 8

Thomas v. Goodman,

No. 04-07-00531-CV, 2008 Tex. App. LEXIS 4933, 2008

WL 2602120, at *4 (Tex. App.—San Antonio July 2, 2008,

pet. denied) (mem. op.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tony Gullo Motors I, L.P v. Chapa,

212 S.W.3d 299, 313 (Tex. 2006) . . . . . . . . . . . . . . . . . . . . . . 10, 12

Trevino v. Houston Orthopedic Center,

831 S.W 2d 341, 344 (Tex. App. – Houston [14th Dist.]

1992, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Varner v. Cardenas,

218 S.W.3d 68, 69 (Tex. 2007) (citing Tony Gullo Motors I,

L.P v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006)) . . . . . . . . . . 10

Statutes:

§134.001, Tex. Civ. Prac. & Rem. Code . . . . . . . . . . . . . . . . . . . . . . 7

§134.005(2)(b), Tex. Civ. Prac. & Rem. Code . . . . . . . . . . . . . . . . . 2, 3, 14

Rule 162, Tex. R. Civ. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Rule 165, Tex. R. Civ. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

All references to the Clerk’s Record will be cited as (CR p. __).

All references to the Court Reporter’s Record will be cited as (RR p. __, l. __)

v

STATEMENT OF THE CASE

This case was commenced on December 10, 2013 by Plaintiff, Xiangxiang

(“Andy”) Tang (CR p. 8). The case proceeded to trial on Plaintiff’s First Amended

Petition and Application for Temporary Restraining Order and Temporary and

Permanent Injunction (CR p. 57). The suit was a partnership dispute between Tang

and her partner, Defendant Yvonne Tran (“Tran”) and also involved Defendant Klaus

Wiegand (“Wiegand”). The pleadings sought injunctive relief to prevent dissipation

of assets of the company and raised claims of breach of contract, breach of fiduciary

duty, conversion, fraud, conspiracy and alleged violations of the Texas Theft

Liability Act. Tran and Wiegand counterclaimed raising identical claims each of their

pleadings, including their Third Amended Original Answer and Counterclaim. (CR

p.113). Tang answered. (CR p. 127).

On September 16, 2014 the parties agreed to the trial assignment of this case to

the Hon. John M. Hawkins, Associate Judge to the 268th Judicial District Court (CR

p. 132). Jury trial commenced thereafter. The jury returned a verdict on September

19, 2014. (CR p. 135). Final Judgment was signed on November 24, 2014. (CR p.

318). Tang filed a Motion for New Trial as to Wiegand only on December 23, 2014.

(CR p. 325).Tang filed her Notice of Appeal on February 19, 2015. (CR p. 328).

vi

STATEMENT REGARDING ORAL ARGUMENT

The Appellant believes that oral argument in this case would be necessary

and helpful to this Court.

vii

ISSUES PRESENTED

(Statement of Points of Error)

APPELLANTS’ POINT OF ERROR ONE: The trial court erred in

failing to enter Judgment that Wiegand have and recover nothing against

Tang on the Texas Theft Liability Act claims;

APPELLANTS’ POINT OF ERROR TWO: The trial court erred in failing to

award a judgment for attorney’s fees to Xiangxiang Tang as a successful

party under the Texas Theft Liability Act, §134.005(2)(b) against Klaus

Wiegand who unsuccessfully brought claims.

APPELLANTS’ POINT OF ERROR THREE: The trial court erred when it

failed to award Plaintiff attorney’s fees against Klaus Wiegand for trial of this

case in defense of the TTLA claims based on the uncontroverted evidence of

such fees.

APPELLANTS’ POINT OF ERROR FOUR: The court erred in not granting

Plaintiff a new trial because failure to award Plaintiff any trial attorney’s fees

against Klaus Wiegand under the evidence, pleadings of the parties, and the

matters in issue, is against the great weight and preponderance of the evidence

and would be inconsistent with conclusive evidence of some amount of such

fees.

viii

STATEMENT OF FACTS

Wiegand, in his original answer and counterclaim, and every version of it,

including the third amendment just prior to trial, asserted claims against Xiangxiang

Tang under the Texas Theft Liability Act. (CR p. 89, 101, 113) The same claims

were made against Tang by Tran, jointly in the same pleadings with Wiegand. (CR

p. 89, 101, 113) Tang answered requesting her attorneys’ fees. (CR p. 127, 129)

Tang also requested an award of attorneys’ fees in her original Petition and

Application for Temporary Restraining Order and Temporary and Permanent

Injunction. (CR p. 8, 30) Tran submitted jury questions on each of her claims, except

fraud, including: breach of contract, breach of fiduciary duty, money had and

received, and under the Texas Theft Liability Act. Wiegand never non-suited his

identical claims (RR Vol. 5, p. 48, 56; RR-hrg 11-14-14, p. 56, l. 37 – p.57, l. 5); he

also submitted no jury questions (RR Vol. 5, p, 4-37), leaving only Tran to submit

questions on those claims. The jury returned a verdict against Tran on all issues, and

specifically answered the Texas Theft Liability Act questions, Jury Question No. 19

- “No”. Tang was the prevailing party as to both Tran and Wiegand’s Texas Theft

Liability Act claims. Tang ultimately moved for Judgment on the verdict against

Tran, including judgment for attorneys’ fees under various theories, including the

Texas Theft Liability Act claim. (CR p. 174, 242) Tang also moved for judgment

against Wiegand, that he recover nothing under the Theft Liability Act and other

1

claims, and proposed a judgment reflecting this (CR p. 174 and CR. p. 211). Tang

included as a basis for her request for fees that she was a prevailing party under the

Texas Theft Liability Act and again sought a Judgment that Wiegand also have and

recover nothing from her on his claims. The Court refused to award the attorneys’

fees against Wiegand and in favor of Tang (RR-hrg 11-14-14, p. 37, l. 20 – p.52, l.

5) and the Court refused to enter Judgment that Wiegand have and recover nothing

on his Texas Theft Liability Act claims and on the other claims he continued to

pursue through trial. (RR-hrg 11-14-14, p. 57, l. 6 – l. 25).

SUMMARY OF THE ARGUMENT

The Trial Court erred in failing to enter a Judgment (1) that included an order

that Wiegand recover nothing on the Texas Theft Liability Act claims against Tang

and (2) that awarded attorneys’ fees to Tang against Wiegand under the Texas Theft

Liability Act, §134.005(2)(b), Tex. Civ. Prac. & Rem. Code, since Tang was a

prevailing party in connection with such claims. Wiegand sued Xiangxiang Tang

under the Texas Theft Liability Act in each of his original, first amended, second

amended and third amended answers and counterclaims. Wiegand failed to produce

any evidence to support the Texas Theft Liability Act claims. Wiegand failed to

dismiss his claim and failed to present jury questions on that claim. Tang, therefore,

was the prevailing party on the Texas Theft Liability Act claims by Wiegand. The

Jury found that the reasonable fees for Tang’s counsel’s services through trial was

2

$55,165.88. Tang was entitled to recover these fees under §134.005(2)(b), Tex. Civ.

Prac. & Rem. Code.

In view of these errors, Tang seeks a modification or reformation of the

Judgment (1) to reflect that she prevailed on Wiegand’s Texas Theft Liability Act

claims and that he have and recover nothing from her on any claims and (2) rendering

Judgment that she have and recover from Wiegand, as a prevailing party under

§134.005(2)(b), Tex. Civ. Prac. & Rem. Code, her attorney’s fees of $55,165.88,

plus post judgment interest at the Judgment rate, plus costs, and that such award be

joint and several with the award of attorney’s fees and costs awarded against Tran.

Alternatively, the Court erred in refusing to grant Tang’s Motion for New

Trial on the sole issue of the award of attorney’s fees against Wiegand and in favor

of Tang under §134.005(2)(b), Tex. Civ. Prac. & Rem. Code, since to award no fees

would be against the great weight and preponderance of the evidence and the

evidence conclusively established such fees, including segregation and exclusion of

fees that could not be awarded. The fees awarded are some evidence of the amount

of the fees that should have been awarded. The Court should therefore remand the

case for entry of the appropriate judgment for reasonable and necessary attorneys’

fees after consideration of additional evidence of the appropriate amount of a fee

award.

3

ARGUMENT

Standard of Review

The Trial Court has no discretion in determining what the law is or in applying

the law to the facts; therefore, the Trial Court’s failure to analyze or apply the law

correctly is an abuse of discretion. In re American Homestar of Lancaster, Inc., 50

S.W.3d 480,483 (Tex. 2001); The Court of Appeals reviews the Trial Court's

conclusions of law de novo. In re Moers, 104 S.W.3d 609, 611 (Tex. App. - Houston

[1st Dist.] 2003, pet. ref'd). The Trial Court’s legal analysis is evaluated

independently to determine correctness. Id. The availability of attorney's fees under

a particular statute is a question of law for the court. Holland v. Wal-Mart Stores,

Inc., 1 S.W.3d 91, 94 (Tex. 1999). Finally, appellant bears the burden of establishing

error in the Trial Court’s judgment. Englander Co. v. Kennedy, 428 S.W.2d 806, 807

(Tex. 1968); Trevino v. Houston Orthopedic Center, 831 S.W 2d 341, 344 (Tex.

App. – Houston [14th Dist.] 1992, writ denied).

APPELLANTS’ POINT OF ERROR ONE: The trial court erred in failing

to enter Judgment that Wiegand have and recover nothing against Tang on the

Texas Theft Liability Act claims.

APPELLANTS’ POINT OF ERROR TWO: The trial court erred in failing to

award a judgment for attorney’s fees to Xiangxiang Tang as a successful party

under the Texas Theft Liability Act, §134.005(2)(b) against Klaus Wiegand who

unsuccessfully brought claims.

4

Judgment Must be Entered on the Texas Theft Liability Act Counter-Claims.

Klaus Wiegand, Yvonne Tran, and L.T.L. Medspa, Inc. all filed counterclaims

against Xiangxiang Tang. (CR p. 89, 101, 113) The counter-plaintiff, Klaus

Wiegand, acknowledged in his testimony that he had a complete lack of evidence to

support any claim or any reason to file a counterclaim, including the theft allegation

underlying his Texas Theft Liability Act counterclaim, (RR Supp. (filed September

18, 2015) Klaus Wiegand testimony; p. 11, line 14 – p. 15, line 1). His claims were

frivolous with no basis in fact or law. Wiegand never non-suited his identical claims

without prejudice under Rule 162, Tex. R. Civ. P., which he was required to do

before the close of all the evidence (RR Vol. 5, p. 48, 56; RR-hrg 11-14-14, p. 56, l.

37 – p. 57, l. 5); he also submitted no jury questions (RR Vol. 5, p. 4-37), leaving

only Tran to submit questions on those claims. Wiegand never non-suited (Rule

162) or abandoned (Rule 165) his Texas Theft Liability Act claims or his other

causes of action. Rule 165, Tex. R. Civ. P., provides the mechanism for a party to

show that a cause of action is not tried on the merits. There is no notation in the

docket sheet (CR p. 339) of a non-suit or abandonment of Wiegand’s claims as both

Rules would provide. Since there is no record that the claims were not tried, the

implication is that they were. This should have resulted, as a matter of law, in denial

of relief on the merits on all of Wiegand’s counterclaims. Accordingly, it was error

for the Trial Court to refuse to or fail to enter judgment that Klaus Wiegand have

5

and recover nothing against Xiangxiang (“Andy”) Tang on his Texas Theft Liability

Act claims. Tang was the prevailing party under that statutory counter-claim.

Judgment should be rendered accordingly for her attorneys’ fees and costs.

Attorneys Fee Should Have Been Awarded

Tang is entitled to a judgment for attorney fees of $55,165.88 found by the

jury in Question 3. This figure was the result of segregation and exclusion of fees

incurred in connection with the tort claims. (CR p. 140). The attorneys’ fees trial

testimony by counsel was clear. All attorneys’ fees that could be segregated were

segregated – the testimony established a 25% reduction because of fees incurred in

connection with the tort claims. The resulting 75% of total fees testified to was the

attorney’s fees figure that the jury awarded. The testimony concerning segregation

made clear that the attorneys’ fees testified to were incurred in connection with

prosecuting Tang’s affirmative claims and defending against the identical counter-

claims brought by all the defendants. The testimony was also clear that the work

done in relation to Tang’s prosecution of her breach of contract claims and defending

against the defensive counterclaims was not subject to further segregation. Tran and

Tang’s relationships in their business formed the basis and background for all their

causes of action. The expert testimony established that only the work done on the

tort claims could be segregated. This reduced the billed fees by 25%; the remaining

fees could not otherwise be segregated. (RR Vol. 4, p. 28, l. 13 – p. 30, l. 9). For

6

example, the identical counter-claims by Wiegand and Tran were the antithesis of

and the counter to the position of Tang on her claims. Tran actually submitted her

Theft Liability Act Claims to the jury and was unsuccessful. (See, Jury Question No.

17; CR p. 154). Wiegand was unsuccessful because he never had any such claims

and apparently asserted them as an impediment to Tang’s claims.

Since Wiegand and Tran pleaded a cause of action under the Texas Theft

Liability Act, §134.001, et seq., of the Tex. Civ. Prac. & Rem. Code, and did not

prevail, Tang is entitled to her attorney’s fees recovery from them. The Theft

Liability Act is a double-edged sword. It provides in §134.005(b) as follows: “Each

person who prevails in a suit under this chapter shall be awarded court costs and

reasonable and necessary attorney’s fees.” (emphasis supplied). The award of

attorney's fees under this section to the prevailing party is mandatory. See Bocquet

v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) (statutes providing that a party “may

recover,” “shall be awarded,” or “is entitled to attorney's fees” are not discretionary).

Texas Courts have specifically held that such recovery is mandatory under this

statute and that when a claimant fails to win, the defendant (or counter-defendant) is

the prevailing party. In fact, this Court has held that the statute requires the court to

award attorney’s fees to a prevailing defendant “without any prerequisite that the

claim is found to be groundless, frivolous, or brought in bad faith.” Air Routing Int'l

7

Corp. (Canada) v. Britannia Airways, Ltd., 150 S.W.3d 682, 686 (Tex. App.—

Houston [14th Dist.] 2004, no pet.).

In refusing to award fees to Tang under the Texas Theft Liability Act, the

Trial Court appears to have mistakenly applied a recent holding in Moak v. Huff, No.

04-11-00184-CV, 2012 Tex. App. LEXIS 1245 (Tex. App. – San Antonio February

15, 2012). (RR-hrg 11-14-14 (VOL 01 of 1) p. 50, l. 1 – p. 52, l. 5). The Trial Court

apparently felt uncomfortable about awarding the attorney’s fees jointly and

severally against Wiegand (as well as Tran) since Tang was not successful on her

claim for conspiracy to breach fiduciary duties against Wiegand. Tang obtained a

jury answer (Question No. 6; CR p. 143) that Wiegand was involved in a conspiracy

with Tran that harmed Tang, but the jury found $0 damages in its answer to Question

No. 7. (CR p. 144) Nevertheless, this is precisely the situation in which Moak would

provide that Tang can recover her attorney’s fees as the prevailing party to the Theft

Liability Act counter-claim by Wiegand. In that case, Moak was a defendant and lost

to Huff on Huff’s claim under the DTPA for damages; Moak, however, was the

prevailing party on a part of Huff’s case where she successfully defended a Theft

Liability Act claim. The trial court refused to award Moak’s fees incurred in

connection with the defense of the claim. The Court of Appeals in Moak reversed

and remanded for Moak to prove up her fees, holding as follows:

“We hold that a person who prevails in a TTLA cause of action is

entitled to recover the reasonable fees necessarily incurred prosecuting

8

or defending that cause of action, even if the party is unsuccessful on

other claims and counterclaims litigated in the same suit.”

This is a correct statement of the law and has been routinely follow by other Courts

of Appeal. See e.g., Arrow Marble, LLC v. Killion, 441 S.W.3d 702, (Tex.App.—

Houston [1st Dist.] 2014); Brown v. Kleerekoper, 2013 Tex. App. LEXIS 2122

(Tex.App.—Houston [1st Dist.] Mar. 5, 2013).

Accordingly, since Tang prevailed upon the counter-claim asserted by both

Wiegand and Tran under the Texas Theft Liability Act she is entitled to the award

of fees from both. Since the pleading and prosecution of the claim by both was joint,

the liability should be joint and several. Yvonne Tran and Klaus Wiegand should be

held jointly and severally liable to Xiangxiang Tang for her reasonable and necessary

attorney’s fees incurred of $55,165.88 and for costs of Court. Judgment should be

rendered accordingly.

APPELLANTS’ POINT OF ERROR THREE: The trial court erred when it

failed to award Plaintiff attorney’s fees against Klaus Wiegand for trial of this

case in defense of the TTLA claims based on the uncontroverted evidence of

such fees.

APPELLANTS’ POINT OF ERROR FOUR: The court erred in not granting

Plaintiff a new trial because failure to award Plaintiff any trial attorney’s fees

against Klaus Wiegand under the evidence, pleadings of the parties, and the

matters in issue, is against the great weight and preponderance of the evidence

and would be inconsistent with conclusive evidence of some amount such fees.

The reason for the Trial Court’s refusal to award fees was not clear. Tang filed

a Motion for New Trial asserting her right to a new trial on the fee issues since it

9

was undisputed that there was evidence that fees were expended by her in defense

of the joint claims by both Tran and Wiegand under the Texas Theft Liability Act.

The Motion was overruled by operation of law. To the extent of any issue about the

quantum of evidence of attorney’s fees, a new trial should be granted to establish the

amount of reasonable and necessary fees to be awarded against Wiegand.

A party who prevails on a cause of action for which fees are recoverable must

prove the fees that were necessary for the litigation of that claim. “[A] prevailing

party must segregate recoverable from unrecoverable attorney’s fees in all cases.”

Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (citing Tony Gullo Motors I,

L.P v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006)). In Tony Gullo, the Texas Supreme

Court “reestablished the rule that attorney’s fees are recoverable only if necessary to

recover on a contract or statutory claim allowing them, and eliminated the exception

for fees incurred solely on separate but arguably intertwined claims.” Varner, 218

S.W.3d at 69 (citing Tony Gullo, 212 S.W.3d at 313). The limited exception to the

duty to segregate applies only “when discrete legal services advance both a

recoverable and unrecoverable claim.” Tony Gullo, 212 S.W.3d at 313-14. The party

seeking fees bears the burden of demonstrating the exception applies. Id. at 314;

Thomas v. Goodman, No. 04-07-00531-CV, 2008 Tex. App. LEXIS 4933, 2008 WL

2602120, at *4 (Tex. App.—San Antonio July 2, 2008, pet. denied) (mem. op.). “If

any of the component tasks relate solely to a cause of action for which legal fees are

10

not recoverable, the claimant must segregate the fees.” 7979 Airport Garage, L.L.C.

v. Dollar Rent A Car Sys., Inc., 245 S.W.3d 488, 509 (Tex. App.—Houston [14th

Dist.] 2007, pet. denied).

Tang’s attorney’s fee testimony met these requirements. Tang’s attorney, Wes

Wauson, testified about the hourly rates of her attorneys, and the overall amount of

her reasonable and necessary attorney’s fees incurred in connection with the suit

through trial – a total of $73,554.50 on an hourly fee basis. The expert fee testimony

established that the work performed on the tort claims could be and must be

segregated. (RR Vol. 4, p. 28, l. 13 – p. 30, l. 9) He testified that fees for claims for

which recovery was not available to Tang under any theory (including the breach of

fiduciary duty and conspiracy claims) would be segregated and excluded by a

reduction of the fees by 25%. The testimony was also clear that the work done in

relation to Tang’s prosecution of her breach of contract claims and defending against

the defensive counterclaims was not subject to further segregation. The relationships

of Tran and Tang in their business formed the basis and background for all their

causes of action. The fees were segregated and the billed fees reduced by 25%.

Counsel opined that the reduction would account for unrecoverable fees. (RR Vol.

4, p. 28, l. 13 – p. 30, l. 9) The reduced amount of reasonable and necessary fees

testified to through trial after removal of amounts related to unrecoverable tort claim

work was $55,165.88. The jury awarded this exact amount in Jury Question No. 3.

11

(CR p. 140) It should be noted that Wiegand’s testimony reflects that his Theft

Liability Act claim was frivolous but apparently was brought to raise an impediment

to Tang’s claims. (RR Supp. (filed September 18, 2015) Klaus Wiegand testimony;

p. 11, line 14 – p. 15, line 1). In addition, the identical counter-claims by Wiegand

and Tran were the antithesis of and the counter to the position of Tang on her claims.

Tang and Wiegand’s counsel had counsel’s billing records available for cross

examination but did not cross examine Tang’s counsel on the opinions after he

testified. Neither side offered the billing records as Exhibits. There was no objection

to the Jury Question inquiring “What is a reasonable fee for the necessary services

of Xiangxiang (“Andy”) Tang’s attorney, stated in dollars and cents?” The Jury’s

finding was the exact amount of counsel’s opinion and there was adequate evidence

to support it. Judgment should be rendered in Tang’s favor for those fees.

Nevertheless, if the Court determines that the segregation was not adequate

or complete and that Tang did not conclusively establish the amount of her recovery

through the Jury’s verdict, she is still entitled to recover the reasonable and necessary

attorney’s fees incurred in defending the claim. The Texas Supreme Court has

acknowledged that “unsegregated attorney’s fees for the entire case are some

evidence of what the segregated amount should be.” Tony Gullo, 212 S.W.3d at 314.

Certainly attorney’s fees, like those in this case, that have been segregated in

substantial part are some evidence of the amount that should be awarded. To award

12

nothing would be against the great weight and preponderance of the evidence and

would be unjust. See, Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001)

(“When a party attacks the factual sufficiency of an adverse finding on an issue on

which she has the burden of proof, she must demonstrate on appeal that the adverse

finding is against the great weight and preponderance of the evidence.”) In addition,

Tang’s alternative prayer for relief seeks remand, which is the proper remedy for

factual insufficiency. Compare Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400,

401-02 (Tex. 1981) (holding that remand for new trial is remedy for factual

insufficiency of evidence) with Beach v. Resolution Trust Corp., 821 S.W.2d 241,

245 (Tex. App.—Houston [1st Dist.] 1991, no writ) (holding that rendition is remedy

only for no evidence).

CONCLUSION

The record is clear that the Trial Court erred in failing to enter in the Judgment

that Klaus Wiegand have and recover nothing over and against Xiangxiang Tang on

his claims against her under the Texas Theft Liability Act, for fraud, for conversion,

for breach of contract, for breach of fiduciary duty, and for declaratory judgment.

Judgment should be so rendered. Since Tang was the prevailing party on Wiegand’s

Texas Theft Liability Act claims, she was entitled to an award of reasonable and

necessary attorneys’ fees in a sum of $55,165.88, as the jury so found were the fees

incurred by her counsel. The Court erred in failing to award those fees in the

13

Judgment. Judgment should be rendered that Tang have and recover such fees and

costs of court against Wiegand, and that such fees and costs of court should be

awarded jointly and severally, with the identical fees and costs awarded against

Yvonne Tran.

In the alternative, to the extent that the fee award and the segregation of fees

at trial are determined to be insufficient in some respect, the Court erred in granting

the motion for new trial and a new trial should be granted to allow Tang to

supplement the testimony in evidence to establish the amount of the attorneys’ fees

and costs to be awarded to her under the Texas Theft Liability Act, in particular,

§134.005(2)(b), Tex. Civ. Prac. & Rem. Code.

PRAYER

This Court should sustain the Appellant’s Points of Error One and Two and

modify, restate or render a judgment that Klaus Wiegand have and recover nothing

over and against Xiangxiang Tang on his claims against her under the Texas Theft

Liability Act, for fraud, for conversion, for breach of contract, for breach of fiduciary

duty, and for declaratory judgment. In sustaining Point of Error Two, Appellant

prays that the Court render Judgment in favor of Xiangxiang Tang against Klaus

Wiegand for attorneys’ fees of $55,165.88, plus all costs of court, with such

judgment to be joint and several with the identical fees and expenses for which

judgment was rendered against Yvonne Tran.

14

In the alternative, to the extent that the Court finds that the attorneys’ fees

have not been fully segregated, Tang requests that the Court sustain Points of Error

Three and Four, and that the portion of this case concerning only the amount of

attorneys’ fees to be awarded to Xiangxiang Tang against Klaus Wiegand be

remanded to the trial court for a trial on the amount of such fees. The Court should

award such other and additional relief to which Xiangxiang Tang is entitled.

Respectfully submitted,

WAUSON ♦ PROBUS

By:___/s/ John Wesley Wauson___

John Wesley Wauson

State Bar No. 20988200

jwwauson@w-plaw.com

One Sugar Creek Center Blvd., Suite 880

Sugar Land, Texas 77478

(281) 242-0303 (Telephone)

(281) 242-0306 (Facsimile)

ATTORNEYS FOR APPELLANT

XIANGXIANG TANG

15

CERTIFICATE OF COMPLIANCE

1. This Appellant’s brief complies with the type-volume limitation of

Texas Rule of Appellate Procedure 9.4(i)(2)(B). This brief contains 3,723 words,

excluding the parts of the brief exempted by Texas Rule of Appellate Procedure

9.4(i)(1).

2. This Appellant’s brief complies with the typeface requirements of

Texas Rule of Appellate Procedure 9.4(e). This brief has been prepared in a

proportionally spaced typeface using Microsoft Word 2010 in 14-point font Times

New Roman.

/s/ John Wesley Wauson____________

John Wesley Wauson

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been

forwarded to the following counsel of record by the Court’s electronic filing system

and/or U.S. Mail on this 21st day of September, 2015.

/s/ John Wesley Wauson___________

John Wesley Wauson

16

APPENDIX

TAB 1

318

319

320

APPENDIX

TAB 2

135

136

137

138

139

140

141

142

143

144

145

146

147

148

149

150

151

152

153

154

155

156

157

158

159

160

APPENDIX

TAB 3

Caution

As of: September 21, 2015 12:34 PM EDT

Moak v. Huff

Court of Appeals of Texas, Fourth District, San Antonio

February 15, 2012, Delivered; February 15, 2012, Filed

No. 04-11-00184-CV

Reporter

2012 Tex. App. LEXIS 1245; 2012 WL 566140

Code Ann. § 17.45 (2011), by (1) representing her investment

Cynthia J. MOAK, Appellant v. Cynthia HUFF, Appellee plan for her daughter had benefits that it did not have and (2)

failing to disclose her intent to divert the funds to her own use,

Prior History: [*1] From the 37th Judicial District Court, thus inducing her daughter into an investment plan she likely

Bexar County, Texas. Trial Court No. 2008-CI-21062. would not have entered into had the mother’s plan been

Honorable Janet P. Littlejohn, Judge Presiding. disclosed. However, the trial court erred in failing to award

attorney fees to the mother for successfully defending against

Disposition: AFFIRMED IN PART AND REVERSED AND the daughter's claim under the Texas Theft Liability Act

REMANDED IN PART. (TTLA) because an award of fees to a prevailing party in a

TTLA action was mandatory. The TTLA required the trial

Core Terms court to award attorney fees to a prevailing defendant without

any prerequisite that the claim was found to be groundless,

funds, trial court, attorney's fees, properties, prevail, invest, frivolous, or brought in bad faith.

real estate, cause of action, buy, proceeds, segregate, expenses,

services, damages, argues, trial court's finding, prevailing Outcome

party, defending, consumer, pet, knowingly, mortgage,

insurance proceeds, selling property, circumstantial evidence, That part of the judgment that awarded the daughter damages

entitled to recover, investment plan, recoverable, expertise, under the Deceptive Trade Practices Act was affirmed, but that

profits portion of the judgment that denied the mother's request for

attorneys fees was reversed, and the case was remanded for

Case Summary further proceedings.

Procedural Posture LexisNexis® Headnotes

Defendant mother appealed a judgment of the 37th Judicial

District Court, Bexar County, Texas, that awarded damages to Civil Procedure > ... > Standards of Review > Substantial

plaintiff daughter under the Deceptive Trade Practices Act, Evidence > Sufficiency of Evidence

arguing that the evidence was legally and factually insufficient

to support the trial court's findings and that the trial court erred HN1 When a trial court has made findings of fact and a

in failing to award her attorney fees for successfully defending reporter's record has been filed, an appellate court reviews the

against her daughter's claim under the Texas Theft Liability findings for legal and factual sufficiency of the evidence using

Act. the same standards applied to jury findings. In addressing a

legal sufficiency challenge, the appellate court views the

Overview evidence in the light that supports the trial court's findings and

indulges every reasonable inference that would support the

The daughter's parents were divorced. After her father's death, findings. The appellate court credits favorable evidence if a

the daughter received the proceeds from his life insurance reasonable factfinder could and disregard contrary evidence

policy, and she was approached by her mother, who offered to unless reasonable factfinders could not. If the evidence would

invest the money for her in certain real estate. Instead, the enable reasonable and fair-minded people to reach the verdict

mother diverted the funds to her own use, and the daughter filed under review, it is legally sufficient. In reviewing factual

suit. On review, the court held that the mother knowingly sufficiency points, an appellate court looks at all the evidence

violated the Deceptive Trade Practices Act, Tex. Bus. & Com. in the record and will sustain the point only if the evidence

Page 2 of 10

Moak v. Huff

supporting the trial court's finding is so weak or so contrary to Civil Procedure > ... > Attorney Fees & Expenses > Basis of

the overwhelming weight of the evidence as to be clearly Recovery > Statutory Awards

wrong and unjust. In conducting a review of both the legal and Civil Procedure > ... > Costs & Attorney Fees > Costs > General

factual sufficiency of the evidence, the appellate court is Overview

mindful that the trial court was the sole judge of the credibility

of the witnesses and the weight to be given their testimony. The HN6 See Tex. Civ. Prac. & Rem. Code Ann. art. 134.005(b)

appellate court may not substitute its judgment for the fact (2011).

finder's, even if the evidence would clearly support a different

result. Civil Procedure > ... > Attorney Fees & Expenses > Basis of

Recovery > Statutory Awards

Antitrust & Trade Law > ... > Trade Practices & Unfair Civil Procedure > Appeals > Standards of Review > De Novo

Competition > State Regulation > Claims Review

HN2 A consumer may recover the economic damages caused Civil Procedure > Appeals > Standards of Review > Questions of

by his detrimental reliance on one of the false, misleading, or Fact & Law

deceptive acts enumerated in § 17.46(b) of the Deceptive Trade

HN7 The availability of attorney fees under a particular statute

Practices Act (DTPA). Tex. Bus. & Com. Code Ann §§ 17.46(b)

is a question of law for the court. An appellate court therefore

and 17.50(a)(1) (2011). If the trier of fact finds the conduct was

reviews the issue de novo.

committed knowingly, it may award additional damages. Tex.

Bus. & Com. Code Ann. §17.50(b)(1). (24).

Civil Procedure > ... > Attorney Fees & Expenses > Basis of

Recovery > Statutory Awards

Antitrust & Trade Law > ... > Trade Practices & Unfair

Competition > State Regulation > Claims HN8 The award of fees to a prevailing party in a Texas Theft

Liability Act (TTLA) action is mandatory. The TTLA requires

HN3 A consumer under the Deceptive Trade Practices Act

the court to award attorney fees to a prevailing defendant

(DTPA) is one who sought or acquired by purchase or lease.

without any prerequisite that the claim is found to be

Tex. Bus. & Com. Code Ann. § 17.45(4) (2011). To be a

groundless, frivolous, or brought in bad faith. The TTLA claim

consumer, plaintiff must have sought or acquired goods or

must actually be litigated for either party to be entitled to fees.

services by purchase or lease, and those goods and services

A plaintiff who obtains both a liability finding and relief, i.e.,

must be the basis of the complaint. A gratuitous act is not a

damages, on the TTLA claim is entitled to an award of fees. A

purchased good or service under the DPTA.

defendant who successfully defends a TTLA suit is entitled to

Antitrust & Trade Law > ... > Trade Practices & Unfair recover his fees.

Competition > State Regulation > Claims

Governments > Legislation > Interpretation

HN4 "Knowingly" under the Deceptive Trade Practices Act

(DTPA) means actual awareness of, at the time of the act or HN9 When a court construes a statute, it reads the words and

phrases used in context and construes them according to the

practice complained of, of the falsity, deception, or unfairness

of the act or practice giving rise to plaintiff's claim. Tex. Bus. rules of grammar and common usage. Tex. Gov't Code Ann. §

& Com. Code Ann. § 17.45(9) (2011). 311.011(a) (2005).

Civil Procedure > ... > Attorney Fees & Expenses > Basis of

Antitrust & Trade Law > ... > Trade Practices & Unfair

Recovery > Statutory Awards

Competition > State Regulation > Claims

Civil Procedure > Appeals > Standards of Review > Questions of HN10 A party who prevails on a cause of action for which fees

Fact & Law are recoverable must prove the fees that were necessary for the

litigation of that claim. A prevailing party must segregate

HN5 Intent under the Deceptive Trade Practices Act (DTPA) recoverable from unrecoverable attorney fees in all cases.

is a fact question uniquely within the realm of the trier of fact Attorney fees are recoverable only if necessary to recover on a

because it so depends upon the credibility of the witnesses and contract or statutory claim allowing them. The exception for

the weight to be given to their testimony. While a party's intent fees incurred solely on separate but arguably intertwined claim

is determined at the time the party made the representation, it has been eliminated, and the limited exception to the duty to

may be inferred from the party's subsequent acts after the segregate applies only when discrete legal services advance

representation is made. both a recoverable and unrecoverable claim. The party seeking

fees bears the burden of demonstrating the exception applies.

Page 3 of 10

Moak v. Huff

Counsel: For APPELLANT: Jason McKinnie, Michael D. After a bench trial, the trial court ruled in Huff's favor on her

Paul, Gunn, Lee & Cave, P.C., San Antonio, TX. DTPA, breach of contract, fraud, and conversion claims, and

found that Moak committed the DTPA violations knowingly.

For APPELLEE: Samuel V. Houston, III, Ford & Massey, The court found Huff suffered economic damages of $70,000,

P.C., San Antonio, TX; Brandon Barchus, Houston, TX; Dinah but that neither mental anguish damages nor entitlement to

L. Gaines, Staff Attorney, Bexar County Civil District Courts, punitive damages was proven. The court ruled

San Antonio, TX. against [*3] Huff on her claim under the Texas Theft Liability

Act (TTLA), ruling Huff did not prove criminal intent, and the

Judges: Opinion by: Steven C. Hilbig, Justice. Sitting: Karen court declined to impose a constructive trust on two properties

Angelini, Justice, Sandee Bryan Marion, Justice, Steven C. Moak had purchased in her own name. Finally, the court denied

Hilbig, Justice. Moak's claim for attorney's fees under the TTLA. Huff elected

to recover on the DTPA cause of action, and the trial court

Opinion by: Steven C. Hilbig signed a judgment awarding Huff $70,000 in economic

damages, prejudgment interest, $140,000 for knowing

Opinion violations of the DTPA, post-judgment interest, and costs. At

Moak's request, the trial court made findings of fact and

conclusions of law.

MEMORANDUM OPINION

On appeal, Moak challenges the legal and factual sufficiency

AFFIRMED IN PART AND REVERSED AND REMANDED of the evidence supporting the trial court's findings on various

IN PART elements of each of the causes of action on which Huff

prevailed. Additionally, Moak contends she conclusively

The trial court rendered judgment awarding Cynthia Huff

damages against her mother, Cynthia Moak, for violations of established her attorney's fees and was entitled to recover them

because she was the prevailing party in Huff's TTLA cause of

the Deceptive Trade Practices Act. Moak appeals the judgment,

arguing the evidence is legally and factually insufficient to action.

support the trial court's findings and the trial court erred by Sufficiency of the Evidence

failing to award her attorney's fees for successfully defending

Standard of Review

Huff's claim under the Texas Theft Liability Act. We affirm the

part of the judgment that awards Huff damages under the HN1 When the trial court has made findings of fact and a

DTPA. However, because we hold Moak was entitled to an reporter's record has been filed, we review the findings for legal

award of attorney's fees, we reverse in part and remand the and factual sufficiency of the evidence using the same

cause to the trial court for further proceedings. standards [*4] we apply to jury findings. Catalina v. Blasdel,

Background 881 S.W.2d 295, 297 (Tex. 1994); Darocy v. Abildtrup, 345

S.W.3d 129, 136 (Tex. App.—Dallas 2011, no pet.). In

When Moak was married to Huff's father, Moak wrote a life

addressing a legal sufficiency challenge, we view the evidence

insurance policy for him, naming herself as beneficiary. The

in the light that supports the trial court's findings and indulge

couple later divorced, [*2] and during one of several child

every reasonable inference that would support the findings.

custody proceedings, the family court ordered that the

City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We

beneficiary of the policy be changed from Moak to Huff. When

credit favorable evidence if a reasonable factfinder could and

Huff's father died in October 2006, Moak helped Huff obtain

disregard contrary evidence unless reasonable factfinders

the $150,000 life insurance proceeds. In December 2006, Huff

could not. Id. If the evidence "would enable reasonable and

delivered $70,000 of the proceeds to Moak pursuant to an

fair-minded people to reach the verdict under review" it is

agreement between them that Moak would invest the money in

legally sufficient. Id. In reviewing factual sufficiency points,

real estate for Huff's benefit. According to Huff, Moak was to

we look at all the evidence in the record, and will sustain the

use her experience and expertise to invest the funds in real

point only if the evidence supporting the trial court's finding is

property that could be sold quickly for a profit, and in

so weak or so contrary to the overwhelming weight of the

exchange, Moak would receive a share of the profit.

evidence as to be clearly wrong and unjust. Cain v. Bain, 709

Two years after transferring the funds to her mother, Huff had S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821,

not received any return on her investment or title to any 823 (Tex. 1965). In conducting our review of both the legal and

property. When Moak refused Huff's demand to return the factual sufficiency of the evidence, we are mindful that the trial

funds, Huff sued Moak, alleging multiple causes of action. court was the sole judge of the credibility [*5] of the witnesses

and the weight to be given their testimony. City of Keller, 168

Page 4 of 10

Moak v. Huff

S.W.3d at 819. We may not substitute our judgment for the fact knowledge about investing, but knew her mother had run an

finder's, even if the evidence would clearly support a different investment consulting business. She testified she had several

result. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 discussions with Moak about investing the funds, during which

(Tex.), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. Moak told Huff she had broad expertise in different fields of

2d 450 (1998). investing, including real estate. Huff testified Moak explained

the concept of "flipping" real estate to her, and told her that in

DTPA Claims and Findings order to make a profit, one must buy and sell quickly in order

to keep expenses low. She testified Moak also explained to her

HN2 A consumer may recover the economic damages caused that investment agents customarily take a percentage of the

by his detrimental reliance on one of the false, misleading, or profit.

deceptive acts enumerated in section 17.46(b) of the DTPA.

Tex. Bus. & Com. Code Ann §§17.46(b), 17.50(a)(1) (West Huff decided to give her mother about half of the insurance

2011). If the trier of fact finds the conduct was committed proceeds to invest for her. Huff testified Moak told her she

knowingly, it may award additional damages. Id. §17.50(b)(1). would most likely invest the money in real estate, led her to

Here, the trial court found Huff and Moak entered into an believe she would "flip" the property, and told Huff that

agreement whereby Huff gave Moak $70,000 to invest in real "we" [*8] should get a good return. Based on what Moak

estate, with the intent the property would be sold quickly for a explained to her about "flipping" real estate, Huff understood

profit. The court found the parties agreed to split the profits. this to mean the intent was to sell the property quickly. Huff

The court found Moak violated the DTPA by: (1) testified it was also her understanding from her discussions

"represent[ing] her investment plan . . . had benefits or uses it with her mother that, as the investment agent, Moak would get

did not have" and (2) "fail[ing] to disclose her intention of a percentage of the profits. However, they never discussed

diverting one half of the life insurance proceeds to her own exactly how much Moak would make.

use[,] inducing Plaintiff into [*6] an investment plan that she

probably would not have entered into if Defendant's plan had Moak's account of the discussions was different. Moak testified

been disclosed." See id. §17.46(b)(15), (24). The court also that her daughter only talks to her when she needs help with

found Moak's deceptive acts were committed knowingly and something, and that it was Huff who approached her for help

they caused Huff to suffer $70,000 in economic damages. The getting the insurance proceeds. Moak testified that Huff also

court found the parties had a long "history" and that their came to her asking for help investing the proceeds. According

testimony about past events was contradictory. The trial court to Moak, Huff was concerned she was spending the proceeds

included a statement that its findings were based on its too quickly. Moak testified that Huff came to her and asked her

evaluation of the witnesses' credibility. to invest the money. According to Moak, Huff suggested it be

invested in real estate, and that was the only type of investment

Moak challenges the sufficiency of the evidence to support the they ever discussed. Moak denied Huff ever said she wanted to

findings that Huff was a consumer of Moak's services, that use the proceeds to buy a house for her and her son.

Moak made any misrepresentations about the investment plan

or failed to disclose her true intentions about her use of the Moak testified she is a business consultant and operated a sole

funds, and that any conduct violating the DTPA was committed proprietorship called "Financial Resources and Investments"

knowingly. since Huff was a child. [*9] Moak denied telling Huff she had

any experience investing in real estate. Moak is not a licensed

The Evidence real estate agent or mortgage broker and never has been. The

only license she has ever held is an insurance agent license. In

The only witnesses at trial were Huff, Moak, and Moak's December 2006, Moak's only experience buying or selling real

attorney, who testified only about attorney's fees. Both Huff estate was in hiring a realtor to buy a personal home. Moak was

and Moak testified their relationship had been strained for a not familiar with the San Antonio real estate market at that

long time. According to Huff, her mother approached her after time. Moak testified she attended her first sheriff's sale at the

her father died and offered to help her obtain the life insurance beginning of December 2006, about the same time Huff

proceeds. Huff believed her mother was making an effort to received the insurance proceeds. She did this because she was

rebuild their relationship, [*7] and accepted the offer. Huff curious about the procedure and was interested in buying tax

received $150,000 insurance proceeds in the beginning of sale property for herself.

December 2006. Huff testified that her mother urged her to

invest as much of the proceeds as possible and offered to invest Moak testified that during her discussions with Huff, Moak

the funds for her. Huff testified she had wanted to use the believed the San Antonio real estate market was very healthy

money to buy a house for her and her young son to live in, but and that if Moak could buy property at a good price, "it would

Moak talked her out of it. Huff had no experience with or be a good situation" for Huff. Moak testified she agreed to

Page 5 of 10

Moak v. Huff

research and buy property with Huff's money, maintain and sell Road property. However, the Seguin Road property only cost

the property for Huff's benefit, and disburse any profits to Huff $24,800, and the statement recites that "[p]reparation of

when the property sold. Moak testified they did not discuss any property for sale not yet begun." And Moak admitted the total

time frame for selling the property. Moak also testified she was cost associated with that property was less than $42,000.

not going to receive any [*10] compensation for her efforts.

Huff testified that after she learned about the properties in July

On December 18, 2006, Huff gave Moak $70,000. Moak 2007, she told Moak she wanted the properties sold quickly so

transferred the funds to an account in her business name — she could get her money back. Moak's response was "you're not

"Cynthia Moak, Sole Proprietor, Financial Resources and the only investor involved in this. It's not all about you." Huff

Investments." Moak testified the account was to be used solely testified that in the only other conversation she had with her

for Huff's investment. However, Moak conceded the funds in mother about the investment, Moak told her she would return

that account were comingled with Moak's personal funds, and Huff's money if Huff would "sign over the rights" to her son.

she testified she did not take any steps to distinguish her funds Moak did nothing further to inform Huff about anything done

from Huff's. to prepare, list, advertise, rent, or sell the properties.

After receiving the money from Huff, Moak consulted with a The Schmeltzer Street property

realtor who advised her about the San Antonio market. Moak

testified she decided the only way to buy at a reasonable price Moak testified she did an on-site visit to the Schmeltzer

was at a sheriff's sale. Moak purchased two properties at a property before bidding on it, but did not notice there were

sheriff's sale on February 7, 2007. One of the properties was squatters living in the [*13] house. After buying the property,

2.004 acres of unimproved land on Seguin Road, which was she pursued a forcible entry and detainer action to remove

purchased for $24,800. Moak testified the comparables for this them. Moak testified she spent money to remodel the house,

property were between $150,000 and $399,000. She also but it was burglarized and vandalized several times and the

bought a house on Schmeltzer Street for $60,400. Moak work had to be redone. Much of the labor was done by her

believed that property was worth over $100,000. Moak testified father-in-law's construction company, which received

she used her own funds to pay for the difference in the price of thousands of dollars for the work. Moak testified the cost of the

the properties, but considered the properties to be Huff's. The work was lower than if she had used another contractor.

deeds were put in Moak's [*11] name, individually. Moak

stated this was because she owned the properties, would be Moak testified she first listed the Schmeltzer property for sale

managing them, and was going to rehabilitate them. She in the fall of 2007. She did not hire a real estate agent and

testified she believed she had to own the properties in order to testified she was advertising and showing the house herself in

turn on the utilities and authorize work to be done. order to keep expenses down. She rented the house to tenants

for several months and testified she used the proceeds towards

Moak testified she did not consult with Huff about purchasing maintenance of the property.

properties at a tax sale, about what properties to buy, or about

how much to spend to purchase the properties or to prepare In February 2008, Moak mortgaged the Schmeltzer property.

them for sale. Nor did Moak tell Huff she was putting the Although the property appraised for $124,000 at the time, the

properties in her own name or the reason for doing so. Moak mortgage company would only give her a loan for $86,500,

testified she notified Huff about the purchases when they 70% of the value. Moak signed a deed of trust and a thirty-year

occurred. However, she conceded she stopped communicating note at seven and one-half percent interest. Moak testified she

with Huff about a month later because they entered into a used the net proceeds of $76,000 for her daily living expenses.

"rather unpleasant" custody dispute over Huff's son.

In April 2009 Moak decided to aggressively

Huff denied that Moak told her about the tax sale purchases. advertise [*14] and market the property, and she hired a real

She testified she tried to contact her mother on numerous estate agent. The house was listed at $129,500 at that time, but

occasions, was unable to get any information from Moak about at the time of trial in December 2010, the asking price had been

her investment. According to Huff, she first learned about the reduced to $124,000.

properties in July 2007, when the judge in the custody

Moak testified she never consulted with or advised Huff about

proceeding over Huff's son ordered Moak to provide Huff

any of the work done on the Schmeltzer property, her decision

information about her investment. Moak then gave Huff

to mortgage the Schmeltzer property, or how to use the

copies [*12] of the deeds from the February 2007 tax sale and

mortgage proceeds. It "never occurred" to her to do so.

a "Statement of Account." The statement recited that 40% of

Likewise, it "never occurred" to Moak to consult with Huff

Huff's investment ($28,000) was in the Schmeltzer property,

about her decision to rent the Schmeltzer house for several

and that 60% of Huff's investment ($42,000) was in the Seguin

Page 6 of 10

Moak v. Huff

months or to keep the proceeds from the rentals. Huff did not "sought or acquired by purchase or lease." Tex. Bus. & Com.

learn the property had been rented until this litigation. Code Ann. § 17.45(4) (West 2011). To be a "consumer," the

plaintiff must have sought or acquired goods or services by

The Seguin Road property purchase or lease, and those goods and services must be the

basis of the complaint. Cameron v. Terrell & Garrett, Inc., 618

Moak offered no evidence she had ever listed the 2.004 acre S.W.2d 535, 539 (Tex. 1981). "A gratuitous act is not a

Seguin Road property for sale. Huff testified that at one point, purchased good or service under the Act." Moritz v. Bueche,

after she learned the properties had been bought, Moak told her 980 S.W.2d 849, 855 (Tex. App.—San Antonio 1998, no pet.).

she had received an offer for it, but turned it down because it

was too low. The property was purchased for $24,800, and Moak contends she provided her investment service

Moak's records show no expenses other than property taxes gratuitously, and the evidence was insufficient to support the

were incurred on the property through 2009. Moak testified that trial [*17] court's finding that the parties agreed Moak would

when she bought the property, she had comparables valued at receive part of the profits from the investment as payment for

between $150,000 [*15] to $399,000. There is no evidence the her services. We disagree. Huff testified that before she entered

property needed any work and Moak offered no explanation of into the investment agreement with her mother, Moak

why she did not seek a quick sale of the property in 2007 or explained to her that the investment agent, Moak in this case,

early 2008. Moak testified that in late summer 2008, the generally takes a share of the profits on the investment. Moak

property lost much of its value because new FEMA floodplain told Huff "we" should make a good return, and Huff understood

maps put part of the land in the one-hundred-year flood plain. her mother would share the profits from the investment. Huff

The Bexar County Appraisal District appraised the property at agreed to this arrangement. Although Moak testified she was

$99,500 in 2007, but the appraisal had dropped to $58,490 by not going to receive any compensation for her services, the trial

2009. court was free to disbelieve her and to believe Huff instead.

Further, although the property had not been sold for a profit at

Moak stated she did not have a planned time frame for selling the time of trial, Moak received monetary benefits from her

the Seguin Road property and never set up a budget for investment services. For example, Moak received $76,000

marketing of the property. She denied ever telling Huff she had from the equity in the Schmeltzer property, which she used for

turned down an offer on the property. Moak testified the only personal expenses. Further, it was apparent from the court-

offer she received was a walk-in offer for $70,000 in October ordered accounting Moak prepared in July 2007 that $17,200

2008. The prospective buyers submitted a signed earnest of Huff's funds had not been attributed to either of the

money contract, but according to Moak, the offer was properties. These funds were commingled with Moak's

withdrawn because the buyers could not obtain financing. personal funds in an account Moak used for her personal

expenses. [*18] We hold the evidence is both legally and

Moak testified that although she commingled Huff's funds with

factually sufficient to establish that Huff sought or acquired

her own, she kept records of the expenses associated with each

Moak's services by purchase or lease and was therefore a

property. She testified that as of the time of trial, she had spent

consumer under the DTPA. See E.F. Hutton & Co., Inc. v.

more than $86,800 of her own funds to purchase, rehabilitate,

Youngblood, 708 S.W.2d 865, 868-69 (Tex. App.— Corpus

and maintain [*16] the properties. The expenditures are

Christi 1986), aff'd, 741 S.W.2d 363 (Tex. 1987) (holding

reflected in her "Quick Book" entries that were admitted into

plaintiff was a consumer of investment services for which

evidence. Moak testified both properties were for sale at the

commission was to be paid even though no commission was

time of trial, but the economic downturn, the increased

ultimately paid or charged).

difficulty in qualifying for a mortgage, and the flood plain

designation made sale difficult. Moak stated that when the

Knowing DTPA violations

properties sell, she plans to subtract her expenses from the

proceeds and give Huff the balance. The trial court found Moak knowingly1 violated the DTPA by

(1) representing her investment plan for Huff had benefits or

Consumer Status uses that it did not have and (2) failing to disclose her intent to

divert the funds to her own use, thus inducing Huff into an

Moak argues Huff was not a consumer under the DTPA

investment plan she probably would not have entered into had

because Moak's investment services were being provided

Moak's plan been disclosed. The trial court's findings do not

gratuitously. HN3 A consumer under the DTPA is one who

specify what Moak's misrepresentations were, and Moak did

1 HN4 or unfairness of the [*19] act or practice giving rise to the plaintiff's

"Knowingly" under the DTPA means "actual awareness of, at

claim." Tex. Bus. & Com. Code Ann. § 17.45(9) (West 2011).

the time of the act or practice complained of, of the falsity, deception,

Page 7 of 10

Moak v. Huff

not request additional findings. Moak argues the evidence is party made the representation, it may be inferred from the

legally and factually insufficient to support these findings. party's subsequent acts after the representation is made." Id.

Although Moak testified to her pure intent, there was ample

Moak argues the evidence of any statements she made to Huff circumstantial evidence that she intended to use the funds for

about the investment plan is insufficiently specific to constitute her own benefit and did not intend to sell the property quickly

actionable misrepresentations or was mere "puffing" or for a profit.

opinion. However, Moak does not address Huff's contention

that part of the inducement for her to give the money to Moak The evidence regarding the Seguin Road property supports a

were Moak's representations that she had broad investment finding that Moak did not intend to resell the property quickly.

expertise, including in real estate. Moak fostered the By Moak's own testimony, the Seguin Road property was

impression that she had experience in real estate investment by bought at 25% or less of its February 2007 value. There was no

explaining to Huff how real estate could be "flipped" for a evidence the property needed any work to prepare it for

profit. Huff was led to believe Moak would use her "broad resale [*22] in February 2007, and the only expense Moak

expertise" to make profitable investment decisions. Moak, in attributed to the property was for taxes. Yet Moak did not

fact, had no knowledge of the real estate market in San prepare a marketing plan or timeline for the property, did not

Antonio, had never been a real estate agent or mortgage broker, list it for sale, and took no other action to try to sell it.

and had never purchased or sold any property other than her

personal residence. She consulted with a realtor about the San The circumstantial evidence also supports the trial court's

Antonio market after receiving Huff's money and a year later finding that Moak intended to use Huff's funds for her own

she took a two-day real estate course. Given that Moak benefit. Initially, Moak talked Huff out of buying a house to

conceded at trial that she had no experience investing in real live in with her son, and instead encouraged Huff to invest the

estate, the trial [*20] court could reasonably find that Moak funds in real estate through Moak. From the time Moak

knowingly misrepresented her qualifications and expertise. received the funds, she treated them as if they were her own.

Moak put the money in an account where it was commingled

Huff also argued Moak misrepresented that she intended to with Moak's personal funds; an account from which Moak paid

quickly sell the property she bought and failed to disclose that personal expenses. After buying the property at the tax sale,

she instead intended to divert the funds for her own benefit. Moak had the deeds put in her name, individually, where they

Moak contends the only direct evidence of her intent at the time remained at the time of trial. The only tangible evidence that

of the transfer of funds was her own testimony that it was her Moak acknowledged Huff had any interest in the property was

intent to buy real estate, prepare it for sale, and sell it for a the July 2007 court-ordered report, which lists Huff's

profit, all of which she would give to Huff. She argues her investment in the Seguin Road property at an amount higher

testimony was clear, direct, positive, and free from than the total cost and expenses associated with the property.

contradiction or suspicious circumstances, and that the trial Moak did not consult with Huff about any decisions regarding

court was therefore not free to disregard it. See Schwartz v. the properties, [*23] did not advise Huff that insurance claims

Pinnacle Communications, 944 S.W.2d 427, 435 (Tex. App.— were made and paid on the Schmeltzer property, and did not

Houston [14th Dist.] 1997, no writ). Moak argues that the advise Huff the property was being rented or share any of the

circumstantial evidence of her intent at the time of the proceeds with Huff. Most significantly, Moak mortgaged the

agreement is "consistent with either of two facts and nothing Schmeltzer property for $86,000, and used the proceeds to pay

shows that one is more probable than the other," and therefore her living expenses. That it "never occurred" to Moak to

"neither fact can be inferred." See Lozano v. Lozano, 52 S.W.3d consult with Huff about her decision to mortgage the property

141, 148 (Tex. 2001) (holding jury may not reasonably infer is entirely consistent with and supports a finding that Moak

ultimate fact from meager circumstantial evidence; where intended to use the funds for her own benefit from the

circumstantial [*21] evidence is slight, something else must be beginning.

found in record to corroborate probability of fact's existence).

She also argues that the trial court could not rely on Moak's The circumstantial evidence supporting the trial court's

conduct after the purchase as evidence of her intent at the time findings is considerably more than "meager." See Lozano, 52

Huff gave her the money. We disagree. S.W.3d at 148. A reasonable factfinder could have found the

weight of the circumstances made it more probable that Moak's

HN5 "Intent is a fact question uniquely within the realm of the intent was to divert Huff's funds for her own benefit and that

trier of fact because it so depends upon the credibility of the she did not intend to sell the property quickly. See id. at 148-

witnesses and the weight to be given to their testimony." 50. The trial court, as the sole judge of the witnesses'

Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. credibility, was free to disbelieve Moak's testimony about her

1986). "While a party's intent is determined at the time the intent. In light of the record as a whole, we hold the evidence

Page 8 of 10

Moak v. Huff

supporting the trial court's findings is not contrary to the Inc., 8 S.W.3d 309, 312 (Tex. 1999); [*26] Travel Music of San

overwhelming weight of the evidence or so weak as to be Antonio, Inc. v. Douglas, No. 04-07-00757-CV, 2002 Tex. App.

clearly [*24] wrong and unjust. See Cain, 709 S.W.2d at 176. LEXIS 3828, 2002 WL 1058527, at *3 (Tex. App.—San Antonio

May 29, 2002, pet. denied) (not designated for publication).

We hold the evidence is both legally and factually sufficient to

support the trial court's findings that Moak knowingly HN8 The award of fees to a prevailing party in a TTLA action

misrepresented her qualifications and expertise and her intent is mandatory. Peoples v. Genco Fed. Credit Union, No. 10-09-

to sell the property quickly for a profit and knowingly failed to 00032-CV, 2010 Tex. App. LEXIS 3386, 2010 WL 1797266, at

disclose her intent to divert the funds for her own use and *7 (Tex. App.—Waco May 5, 2010, no pet.)(mem. op.)

benefit. We affirm the judgment for Huff on her DTPA claim. (affirming summary judgment for defendant in a TTLA suit

We therefore do not address Moak's issues challenging the and remanding for fee award). The TTLA requires the court to

findings in support of the breach of contract, conversion, and award attorney's fees to a prevailing defendant "without any

fraud claims. prerequisite that the claim is found to be groundless, frivolous,

Attorney's Fees or brought in bad faith." Air Routing Int'l Corp. (Canada) v.

Britannia Airways, Ltd., 150 S.W.3d 682, 686 (Tex. App.—

Moak next argues the trial court erred by failing to award her Houston [14th Dist.] 2004, no pet.); see Bocquet v. Herring,

attorney's fees because she was the prevailing party on Huff's 972 S.W.2d 19, 20 (Tex. 1998) ("Statutes providing that a party

TTLA claim and she conclusively established the amount of 'may recover,' 'shall be awarded,' or 'is entitled to' attorney fees

her fees. Chapter 134 of the Civil Practice and Remedies Code are not discretionary."). The TTLA claim must actually be

is the Texas Theft Liability Act. Section 134.005(b) of that litigated for either party to be entitled to fees. See Travel Music,

chapter states: 2002 Tex. App. LEXIS 3828, 2002 WL 1058527, at *3 (holding

that where TTLA claim was nonsuited before trial, no party

HN6 Each person who prevails in a suit under this chapter

successfully prosecuted or defended merits of TTLA

shall be awarded court costs and reasonable and necessary

claim; [*27] therefore neither party "prevailed" on claim so as

attorney's fees.

to be entitled to fee award, even though related claims were

tried). A plaintiff who obtains both a liability finding and relief,

Tex. Civ. Prac. & Rem. Code Ann. art. 134.005(b) (West 2011). i.e., damages, on the TTLA claim is entitled to an award of fees.

Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 641-

Moak presented evidence at trial that the reasonable and 42 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). A

necessary fees and costs she had incurred through trial were defendant who successfully defends a TTLA suit is entitled to

$43,600 [*25] and the fees that would be incurred in an appeal recover his fees. See Peoples, 2010 Tex. App. LEXIS 3386,

to this court were $7,000. She also presented evidence that it 2010 WL 1797266, at *7; Air Routing, 150 S.W.3d at 684.

would cost $5,000 to respond to a petition for review in the

Supreme Court and $12,000 if the petition were granted. Huff Huff argues this case is distinguishable from Air Routing and

did not controvert this evidence. Additionally, Moak's fee Peoples because in each of those cases the defendant obtained

witness testified in one conclusory statement that the fees a take-nothing judgment against the plaintiff in the suit as a

incurred defending the TTLA claim could not be segregated whole and, was clearly the prevailing party in the suit. She

because the "causes of actions are . . . inextricably intertwined argues that a person does not "prevail in a suit" unless he is the

with each other." The trial court ruled for Moak on Huff's "party in whose favor a judgment is rendered" and is

TTLA claim, concluding Moak "did not exhibit the requisite "vindicated by the judgment." See Flagship Hotel, Ltd. v. City

criminal intent for [Huff] to recover under the Theft Liability of Galveston, 117 S.W.3d 552, 564-5 (Tex. App.— Texarkana

Act." However, the court also concluded that Moak "is not 2003, pet. denied) (where each party prevailed on various

entitled to recover attorney fees pursuant to the Theft Liability breach of contract claims in suit, "prevailing party" for purpose

Act as a prevailing party." The trial court did not make any of fee award was party who prevailed on main issue, was

findings of fact about the amount of reasonable and necessary awarded damages, and [*28] "was vindicated by the trial court's

fees Moak incurred defending the claim. judgment"); City of Amarillo v. Glick, 991 S.W.2d 14, 17 (Tex.

App.—Amarillo 1997, pet. dism'd) (police officers who

Entitlement to Fees appealed Civil Service Commission decision were entitled to

fee award under 143.015(c) Texas Local Government Code as

HN7 The availability of attorney's fees under a particular prevailing parties because officers were "vindicated by the

statute is a question of law for the court. Holland v. Wal-Mart judgment," which set aside Commission's decision, even

Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999). We therefore review though officers did not receive all relief sought).

the issue de novo. El Paso Nat. Gas Co. v. Minco Oil & Gas,

Page 9 of 10

Moak v. Huff

None of the cases cited by either Moak or Huff involve a party recoverable from unrecoverable attorney's fees in all cases."

who clearly prevailed on claim for which fees are statutorily Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (citing

authorized, but who was unsuccessful on other claims and had Tony Gullo Motors I, L.P v. Chapa, 212 S.W.3d 299, 313 (Tex.

a monetary judgment rendered against him. And none of the 2006)). In Tony Gullo, the Texas Supreme Court

cases cited by either party sheds light on the precise issue "reestablished [*31] the rule that attorney's fees are recoverable

before us: whether the phrase "person who prevails in a suit only if necessary to recover on a contract or statutory claim

under this chapter" requires the party seeking fees simply to allowing them, and eliminated the exception for fees incurred

prevail on the TTLA claim or to prevail in the suit as a whole. solely on separate but arguably intertwined claims." Varner,

See McKinley v. Drozd, 685 S.W.2d 7, 8-9 (Tex. 1985) (noting 218 S.W.3d at 69 (citing Tony Gullo, 212 S.W.3d at 313). The

that language of DTPA that "[e]ach consumer who prevails limited exception to the duty to segregate applies only "when

shall be awarded . . ." did not answer question whether discrete legal services advance both a recoverable and

consumer must prevail only on DTPA claim or must obtain net unrecoverable claim." Tony Gullo, 212 S.W.3d at 313-14. The

recovery in entire lawsuit, and holding [*29] that, in light of party seeking fees bears the burden of demonstrating the

purpose of statute, "prevail" referred to claim under DTPA and exception applies. Id. at 314; Thomas v. Goodman, No. 04-07-

net recovery in suit not required for fee award). 00531-CV, 2008 Tex. App. LEXIS 4933, 2008 WL 2602120, at

*4 (Tex. App.—San Antonio July 2, 2008, pet. denied) (mem.

HN9 When we construe a statute, we read the words and op.). "If any of the component tasks relate solely to a cause of

phrases used in context, and we construe them according to the action for which legal fees are not recoverable, the claimant

rules of grammar and common usage. Tex. Gov't Code Ann. § must segregate the fees." 7979 Airport Garage, L.L.C. v.

311.011(a) (West 2005). Huff focuses on the word "suit," and Dollar Rent A Car Sys., Inc., 245 S.W.3d 488, 509 (Tex. App.—

argues the statute means that to be entitled to a recovery of fees Houston [14th Dist.] 2007, pet. denied).

under the TTLA, a party must prevail on the TTLA cause of

action in a suit and prevail in the suit as a whole. However, this Moak's attorney testified about the time spent defending Huff's

interpretation adds a requirement to the recovery of fees that claims and that the amount of fees claimed were reasonable and

the legislature did not include in the statute. We believe the necessary to the defense. When asked whether he could

more common sense meaning of the phrase "suit under this segregate the fees incurred defending the TTLA claim from

chapter" is a cause of action under chapter 134 of the Texas those [*32] relating to the other causes of action, the witness

Civil Practice and Remedies Code — the TTLA. We hold that testified:

a person who prevails in a TTLA cause of action is entitled to

recover the reasonable fees necessarily incurred prosecuting or They can't be segregated. The causes of actions are, I

defending that cause of action, even if the party is unsuccessful believe the case law says, inextricably intertwined with

on other claims and counterclaims litigated in the same suit. each other. So you're not able to separate them out.

We therefore conclude the trial court erred in ruling that Moak

was not entitled to recover [*30] attorneys' fees under the

However, Moak also introduced into evidence her attorney's

TTLA as a prevailing party.

billing records, which include entries for legal work unrelated

Amount of Fees to defense of the TTLA claim. For example, one entry reflects

three hours spent drafting a DTPA counterclaim. Another

Moak challenges the legal and factual sufficiency of the trial reflects over three hours to research a "trust issue." These fees

court's failure to find any fees. To prevail on her legal were clearly not necessarily incurred in the defense of the

sufficiency point, Moak must show there was no evidence to TTLA claim. Because the discrete legal services performed by

support the trial court's failure to award any fees and that the Moak's attorneys did not all advance both the defense of the

evidence establishes the amount of her reasonable and TTLA claim and the defense of the other causes of action,

necessary fees as a matter of law. See Dow Chem. Co. v. Moak was required to segregate her attorney's fees. See Tony

Francis, 46 S.W.3d 237, 241 (Tex. 2001). Moak contends she Gullo, 212 S.W.3d at 314 ("when "it cannot be denied that at

conclusively established reasonable and necessary attorney's least some of the attorney's fees are attributable only to claims

fees in the amount of $43,600. She argues she also presented for which fees are not recoverable," segregation is required);

uncontroverted evidence that the causes of action were so See also Ragsdale v. Progressive Voters League, 801 S.W.2d

inextricably intertwined that fees could not be segregated, and 880, 881-82 (Tex. 1990)(the trial court is not required to credit

that the trial court was therefore not free to disregard it. uncontroverted testimony where circumstances tend

to [*33] discredit or impeach the testimony).

HN10 A party who prevails on a cause of action for which fees

are recoverable must prove the fees that were necessary for the We hold Moak was required to segregate her attorney's fees,

litigation of that claim. "[A] prevailing party must segregate but did not do so. Therefore, Moak did not conclusively

Page 10 of 10

Moak v. Huff

establish the amount of her fees and is not entitled to have Conclusion

judgment rendered in her favor for the full amount of fees she

sought. However, because Moak is entitled to recover the We affirm the judgment in favor of Huff on her DTPA claim.

reasonable and necessary attorney's fees incurred in defending However, because the trial court erred in failing to award Moak

the TTLA claim and because "unsegregated attorney's fees for the fees incurred successfully defending the TTLA claim, we

the entire case are some evidence of what the segregated reverse the judgment in part and remand the cause to the trial

amount should be," Tony Gullo, 212 S.W.3d at 314, we reverse court for a new trial on Moak's attorney's fees.

the judgment in part and remand the cause to the trial court for

Steven C. Hilbig, Justice

a new trial on Moak's attorney's fees.

End of Document