Opinion

Great North American Stationers, Inc. v. Ball

  • 770 S.W.2d 631
  • 1989 Tex. App. LEXIS 1440
  • 1989 WL 56451
Court
Texas Court of Appeals, 5th District (Dallas)
Filed
May 2, 1989
Status
Published
Author
Kinkeade
On the bench
Howell, Thomas, Kinkeade
Cited by
16 cases
Authority
More cited than 8.0%

The opinion

KINKEADE, Justice,

concurring.

I agree with the majority that, based on the record before it, the trial court did not abuse its discretion in awarding the amount it did for appellate attorney’s fees. I also agree with the majority that we are precluded from considering GNAS’s post-judgment decision to narrow the scope of appeal because that decision is not part of the record. Allied Finance Co. v. Garza, 626 S.W.2d 120, 127 (Tex.App.—Corpus Christi 1981, writ ref’d n.r.e.). Accordingly, I do not dissent. However, I write separately because the case law concerning standards when reviewing a complaint about excessive attorney’s fees principally *635 concern attorney’s fees at the trial level. I believe appellate costs should be reviewed differently.

The costs of appeal are dictated by the scope of the challenge of the trial court’s judgment. However, the parties must present evidence of appellate costs before they ascertain the breadth of a possible appeal. Consequently, the amount awarded may bear little relationship to the actual costs. The instant case is the perfect example. Appellees will receive $110,750 because they have prevailed on this appeal. Counsel for those same appellees testified that if the appeal was limited to four or less issues, then the cost of the appeal to this Court would be about $50,000. Attorney’s fees must be reasonable. Commonwealth Lloyd’s Ins. Co. v. Thomas, 678 S.W.2d 278, 284 (Tex.App.—Fort Worth 1984, writ ref’d n.r.e.). Appellee’s counsel, by conceding that he will receive a $60,000 windfall also concedes the award was unreasonable. Nevertheless, we are precluded from acting because at the time of trial $110,750 was also a reasonable forecast of possible appellate costs.

Furthermore, this result frustrates the policy of promotion of judicial economy. GNAS limited their review to a narrow issue of law. GNAS has not filed a statement of facte except with respect to its challenge of the attorney’s fee award. Today’s decision gives appellants less incentive to limit the scope of their appeal. When an appellant chooses to limit his appeal, he should be rewarded, otherwise, we encourage a shot-gun blast approach to appeals. Efforts to limit litigation to the genuine issues in dispute should be encouraged.

The evidence presented at trial regarding appellate costs is inherently speculative. In situations such as the present one, where the appellant has voluntarily limited the scope of his appeal, and the amount awarded is manifestly disproportionate to the actual costs of appeal, we should have discretion to suggest a remittitur or to remand for a hearing before the trial judge to recalculate the costs of appeal. We punish frivolous appeals, why not reward appeals limited to the real dispute. A carrot often works better than a stick.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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