Michael Quinn Sullivan v. Salem Abraham ( 2017 )

ACCEPTED
07-17-00125-CV
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
7/14/2017 3:33 PM
Vivian Long, Clerk
No. 07-17-00125-CV
_______________________________________ FILED IN
7th COURT OF APPEALS
AMARILLO, TEXAS
IN THE 7/14/2017 3:33:09 PM
SEVENTH COURT OF APPEALS
AT AMARILLO, TEXAS VIVIAN LONG
CLERK
_______________________________________
MICHAEL QUINN SULLIVAN,
Appellant,
v.
SALEM ABRAHAM,
Appellee.
_____________________________________________________
On Appeal the 31st District Court of Hemphill County, Texas
(No. 6994)
After Remand from the Supreme Court of Texas
(No. 14-0987)
APPELLANT’S BRIEF
James E. “Trey” Trainor, III N. Terry Adams, Jr.
State Bar No. 24042052 State Bar No. 00874010
trey.trainor@akerman.com terry.adams@akerman.com
AKERMAN LLP Joseph M. Nixon
700 Lavaca Street, Suite 1400 State Bar No. 15244800
Austin, Texas 78701 joe.nixon@akerman.com
Tel: (512) 623-6700 Nicholas D. Stepp
Fax: (512) 623-6701 State Bar No. 24077701
nicholas.stepp@akerman.com
AKERMAN LLP
1300 Post Oak Boulevard, Suite 2500
Houston, Texas 77056
Tel: (713) 623-0887
Fax: (713) 960-1527
Counsel for Appellant Michael Quinn Sullivan
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant: Michael Quinn Sullivan
Appellate Counsel Trial and Appellate Counsel
N. Terry Adams, Jr. Joseph M. Nixon
State Bar No. 00874010 State Bar No. 15244800
terry.adams@akerman.com joe.nixon@akerman.com
Nicholas D. Stepp AKERMAN LLP
State Bar No. 24077701 1300 Post Oak Boulevard, Suite 2500
AKERMAN LLP Houston, Texas 77056
1300 Post Oak Boulevard, Suite 2500 Telephone: (713) 623-0887
Houston, Texas 77056 Fax: (713) 960-1527
Telephone: (713) 623-0887
Fax: (713) 960-1527 James E. “Trey” Trainor, III
State Bar No. 24042052
trey.trainor@akerman.com
AKERMAN LLP
700 Lavaca, Suite 1400
Austin, Texas 78701
Telephone: (512) 623-6700
Fax: (512) 623-6701
Appellee: Salem Abraham
Appellee’s Trial and Appellate Counsel
John H. Lovell
State Bar No. 12609300
john@lovell-law.net
Courtney D. Miller
State Bar No. 24055342
courtney@lovell-law.net
LOVELL, LOVELL, ISERN & FARABOUGH, LLP
112 West 8th Avenue, Suite 1000
Amarillo, Texas 79101-2314
Telephone: (806) 373-1515
Fax: (806) 379-7176
ii
TABLE OF CONTENTS
Identity of Parties and Counsel ................................................................................. ii
Index of Authorities ...................................................................................................v
Designation of Record References.............................................................................x
Statement of the Case............................................................................................... xi
Issues Presented ...................................................................................................... xii
Statement of Facts ......................................................................................................1
Summary of the Argument.........................................................................................6
Argument....................................................................................................................7
I. The district court abused its discretion in failing to follow the test
established by the Supreme Court of Texas for determining
reasonable attorney’s fees. ............................................................................... 7
A. The Supreme Court of Texas has directed that a reasonable
fee is fair and moderate, not excessive or extreme. ..............................7
B. There is very little disagreement in the record about what
an award of reasonable fees should be. ...............................................10
1. Time and labor required, novelty and difficulty of
the questions, skill required to perform the legal
services properly .......................................................................10
2. Likelihood that the acceptance of the particular
employment will preclude other employment by the
lawyer ........................................................................................14
3. Fee customarily charged in the locality for similar
legal services .............................................................................14
4. Amount involved and results obtained .....................................15
5. The time limitations imposed by client or
circumstances ............................................................................16
6. Nature and length of professional relationship
between lawyer and client .........................................................16
7. Experience, reputation, and ability of the lawyers ...................17
8. Whether the fee is fixed or contingent on results
obtained or uncertainty of collection ........................................17
ii
C. The district court failed to apply the law correctly and
acted without reference to guiding principles. ....................................17
II. The district court’s judgment must be reversed because there is
no evidence to support Findings of Fact 5, 6, 7, 8, or 9. ............................... 20
A. The district court abused its discretion and failed to apply
the law correctly in sustaining Abraham’s objections. .......................21
1. There is evidence of the fees customarily charged in
the locality for similar services. ................................................22
2. Sullivan offered ample evidence from which both
Abraham and the district court could engage in a
meaningful review of the fees sought. ......................................22
3. It was an abuse of discretion to sustain Abraham’s
testimonial objections. ..............................................................23
4. Blended rates are commonplace and comply with
the Texas Disciplinary Rules. ...................................................24
5. Abraham’s litigation tactics, not the amounts
Sullivan seeks, disincentivize the cessation of
litigation. In any event, this is not a recognized basis
for a legal objection...................................................................25
B. There is no evidence to support Findings of Fact 5, 6, 7, 8,
and 9. ...................................................................................................26
1. Salem Abraham sued Sullivan for defamation
despite knowing prior to filing suit that Sullivan was
not Greer’s source. ....................................................................26
2. No evidence supports a relationship between
Sullivan and Greer such that it was proper to infer
that Sullivan could have been Greer’s source...........................28
3. The award to Michael Quinn Sullivan of $35,000 in
attorney’s fees through remand from the Supreme
Court relies on an incorrect legal standard and has
no evidence to support it. ..........................................................29
4. The award to Michael Quinn Sullivan of $7,200 in
attorney’s fees for work after remand relies on an
incorrect legal standard and has no evidence to
support it. ..................................................................................31
iii
III. In Findings of Fact 8 and 9, the trial court reversibly erred by
commingling in a broad-form finding multiple damages elements
that are legally insufficient. ........................................................................... 32
A. Reversible error is presumed under Casteel and its
progeny. ...............................................................................................32
B. Casteel and its progeny apply to findings of fact................................33
C. Finding of Fact 8 .................................................................................35
D. Finding of Fact 9 .................................................................................39
IV. The district court erred in failing to award conditional appellate
attorney’s fees. ............................................................................................... 42
Conclusion and Prayer .............................................................................................44
Certificate of Compliance ........................................................................................46
Certificate of Service ...............................................................................................46
Appendix
Tab A Final Judgment, signed February 27, 2017
Tab B Findings of Fact and Conclusions of Law
Tab C Motion to Abate Appeal for Findings of Fact and
Conclusions of Law
Tab D Order of July 5, 2017, denying Motion to Abate
Tab E Order Awarding Attorney Fees and Sanctions, McGibney
v. Retzlaff, No. 067-270669-14, 2016 WL 1703694 (67th
Dist. Ct., Tarrant Cnty., Apr. 14, 2016)
iv
INDEX OF AUTHORITIES
Cases
Abraham v. Greer,
474 S.W.3d 731 (Tex. App.—Amarillo 2014), rev’d, 484 S.W.3d
440 (Tex. 2016)................................................................................................... 13
Abraham v. Greer,
509 S.W.3d 609 (Tex. App.—Amarillo 2016, pet. denied) ........................... 2, 23
Arthur Andersen & Co. v. Perry Equipment Corp.
945 S.W.2d 812 (Tex. 1997) ......................................................................6, 8, 18
Beaumont Bank, N.A. v. Buller,
806 S.W.2d 223 (Tex. 1991) .............................................................................. 17
Bocquet v. Herring,
972 S.W.2d 19 (Tex. 1998)................................................................................. 42
Busteed v. Coldspring Oakhurst Consol. Indep. Sch. Dist.,
No. 07-02-00103-CV, 2002 WL 31549428 (Tex. App.—Amarillo
Nov. 18, 2002, no pet.) .....................................................................29, 31, 38, 40
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) ..................................................................20, 21, 22
City of Lardeo v. Montano,
414 S.W.3d 731 (Tex. 2013) ................................................................................ 9
Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,
136 S.W.3d 227 (Tex. 2004) ..................................................................21, 38, 40
Crown Life Ins. Co., v. Casteel,
22 S.W.3d 378 (Tex. 2000)..........................................................................passim
Cruz v. Van Sickle,
452 S.W.3d 503 (Tex. App.—Dallas 2014, pet. denied)..............................13, 42
D’Lux Movers & Storage v. Fulton,
No. 02-06-0019-CV, 2007 WL 1299400 (Tex. App.—Fort Worth
May 3, 2007, pet. denied) ................................................................................... 24
v
DaimlerChrysler Motors Co. v. Manuel,
362 S.W.3d 160 (Tex. App.—Fort Worth 2012, no pet.)................................... 42
Dallas Cnty. Constable Precinct No. 5 v. Garden City Boxing Club,
Inc.,
219 S.W.3d 613 (Tex. App.—Dallas 2007, no pet.) .......................................... 20
Deutsch v. Henry,
2016 WL 7165993 (W.D. Tex. Dec. 7, 2016) .................................................... 44
El Apple I, Ltd. v. Olivas,
370 S.W.3d 757 (Tex. 2012) .............................................................................. 22
Expelled Grain Prods., LLC v. Corn Mill Enters, LLC,
No. 07-14-00398-CV, 2016 WL 4413323 (Tex. App.—Amarillo
Aug. 17, 2016, pet. denied)................................................................................... 9
Ford Motor Co. v. Ridgway,
135 S.W.3d 598 (Tex. 2004) .............................................................................. 21
Garcia v. Gomez,
319 S.W.3d 638 (Tex. 2010) ................................................................................ 7
Gates v. City of Dallas,
704 S.W.2d 737 (Tex. 1986) .............................................................................. 43
Green v. Alford,
274 S.W.3d 5 (Tex. Ap.—Houston [14th Dist.] 2008, pet. denied) ................... 20
Greer v. Abraham,
489 S.W.3d 440 (Tex. 2016) ................................................................................ 2
Hancock v. Variyam,
400 S.W.3d 59 (Tex. 2013).....................................................................21, 38, 40
Harris Cnty. v. Smith,
96 S.W.3d 230 (Tex. 2002)...............................................................33, 34, 39, 41
Hersh v. Tatum,
___ S.W.3d ____, 2017 WL 2839873 (Tex. 2017) ............................................ 44
In re Alford Chevrolet-Geo,
997 S.W.2d 173 (Tex. 1999) .............................................................................. 27
vi
In re Am. Homestar of Lancaster, Inc.,
50 S.W.3d 480 (Tex. 2001)................................................................................. 17
In re Marriage of C.A.S and D.P.S.,
405 S.W.3d 373 (Tex. App.—Dallas 2013, no pet.) .......................................... 33
Jackson v. VanWinkle,
660 S.W.2d 807 (Tex. 1983) .............................................................................. 17
Khan v. Chaudhry,
No. 09-14-0479-CV, 2016 WL 1158734 (Tex. App.—Beaumont
Mar. 24, 2016, pet. denied) ................................................................................. 24
Kindred v. Con/Chem, Inc.,
650 S.W.2d 61 (Tex. 1983)................................................................................. 21
Long v. Griffin,
442 S.W.3d 253 (Tex. 2014) ......................................................................8, 9, 22
Lopez v. Bailon,
No. 07-14-00442-CV, 2016 WL 4158034 (Tex. App.—Amarillo
Aug. 4, 2016, no pet.) ..................................................................................... 9, 19
Lowe v. Johnson Cnty.,
No. 03A01-9309-CH-00321, 1995 WL 306166 (Tenn. Ct. App.
May 19, 1995) ..................................................................................................... 20
McGibney v. Retzlaff,
No. 67-270669-14, 2016 WL 1703694 (67th Dist. Ct., Tarrant
Cnty.) (Apr. 14, 2016) ........................................................................................ 15
Murrco Agency, Inc. v. Ryan,
800 S.W.2d 600 (Tex. App.—Dallas 1990, no writ) ....................................29, 31
Prairie Valley Ind. Sch. Dist. v. Sawyer,
665 S.W.2d 606 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.) ...............29, 31
Rauhauser v. McGibney,
508 S.W.3d 377 (Tex. App.—Fort Worth 2014, no pet.)................................... 13
Roger v. Zanetti,
___ S.W.3d ____, 2017 WL 1553154 (Tex. 2017) ............................................ 21
vii
Schwartz v. Folloder,
767 F.2d 126 (5th Cir. 1985) .............................................................................. 44
Sciarrilla v. Osborne,
946 S.W.2d 919 (Tex. App.—Beaumont 1997, pet. denied) .......................23, 24
Simmons v. State,
100 S.W.3d 484 (Tex. App.—Texarkana 2003, pet. ref’d) ................................ 25
Sullivan v. Abraham,
472 S.W.3d 677 (Tex. App.—Amarillo 2014), rev’d in part, 488
S.W.3d 294 (Tex. 2016)...............................................................................passim
Sullivan v. Abraham,
488 S.W.3d 294 (Tex. 2016) .......................................................................passim
Tagle v. Galvan,
155 S.W.3d 510 (Tex. App.—San Antonio 2004, no pet.) ................................ 33
Thota v. Young,
366 S.W.3d 678 (Tex. 2012) ............................................................32, 33, 39, 41
Town Ctr. Mall, L.P. v. Dyer,
2015 WL 5770583 (Tex. App.—Fort Worth 2015, pet. denied)........................ 33
Ventling v. Johnson,
466 S.W.3d 143 (Tex. 2015) ..................................................................19, 42, 43
Wilkins v. Royal Indemn. Co.,
592 S.W.2d 64 (Tex. Civ. App.—Tyler 1979, no writ) ..................................... 23
Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P.,
422 S.W.3d 821 (Tex. App.—Dallas 2014, no pet.) .......................................... 35
Zaidi v. Shah,
502 S.W.3d 434 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied)..........................................................................................................passim
Statutes
TEX. BUS. & COM. CODE § 17.50(d) ........................................................................ 29
TEX. CIV. PRAC. & REM. CODE § 27.002 .................................................................. 44
viii
TEX. CIV. PRAC. & REM. CODE § 27.003............................................................13, 28
TEX. CIV. PRAC. & REM. CODE § 27.009 ...........................................................passim
TEX. CIV. PRAC. & REM. CODE § 27.009(a) .................................................15, 16, 38
TEX. CIV. PRAC. & REM. CODE § 27.011 .................................................................. 43
TEX. CIV. PRAC. & REM. CODE § 38.001............................................................29, 43
TEX. GOV’T CODE § 22.001 ...................................................................................... 14
Rules
TEX. DISC. R. PROF’L CONDUCT 1.04 ......................................................................... 8
TEX. R. APP. P. 33.1(a)(2) .......................................................................................... 5
TEX. R. CIV. P. 13 ..................................................................................................... 26
Other Authorities
Gilbreath, Robert B., Caught in a Crossfire, TEX. TECH L. REV. 139,
178 (1996) ........................................................................................................... 25
New Roget’s Thesaurus in Dictionary Form ........................................................... 37
OFFICE OF COURT ADMIN.,
ANNUAL STATISTICAL REPORT FOR THE TEX. JUDICIARY (FISCAL
YEAR 2016) (2016)............................................................................................. 14
Prather, Laura Lee, Five Years of Anti-SLAPP in Texas 3 (2016) .......................... 43
1 TEX. PRAC. GUIDE
WILLS, TRUSTS & ESTATE PLANNING § 2:63 (Dec. 2016) ................................... 24
Webster’s New World Dictionary, Second College Edition .................................... 37
White, Mark D. & L. Hayes Fuller, III, Attorney Fees Update ............................... 24
ix
DESIGNATION OF RECORD REFERENCES
Clerk’s Record: (CR[volume]:[page])
Volume 1: Original trial court proceedings
Volume 2: Trial court proceedings on remand
Reporter’s Record: (RR[volume]:[page])
Volumes 1 & 2: Original trial court proceedings
Volume 3: Trial court proceedings on remand
x
STATEMENT OF THE CASE
Nature of the case: This appeal involves an award of attorney’s fees
following a dismissal of a defamation claim
pursuant to the Texas Citizens Participation Act
(TCPA). (CR2:439; CR1:768).
Trial Court information: 31st Judicial District Court,
Hemphill County, Texas
The Honorable Steven Emmert
Course of proceedings: The trial court dismissed Salem Abraham’s
defamation claim, awarded approximately 10% of
the attorney’s fees, costs, and expenses sought by
Michael Quinn Sullivan, and refused to award any
sanction against Salem Abraham. (CR1:768–69).
In the first appeal, this Court reversed in part,
holding that an award of sanctions was mandatory
under the TCPA. Sullivan v. Abraham, 472 S.W.3d
677, 683 (Tex. App.—Amarillo 2014), re’vd on
other grounds, 488 S.W.3d 294 (Tex. 2016). The
Court affirmed the remainder of the judgment.
The Supreme Court of Texas reversed, holding that
considerations of justice and equity do not inform
an award of costs or reasonable attorney’s fees
under the TCPA. Sullivan v. Abraham, 488 S.W.3d
294, 299–300. The supreme court remanded for an
award of costs, reasonable attorney’s fees, other
expenses as justice and equity require, and a
sanction.
Trial Court disposition: On remand, the trial court awarded Michael Quinn
Sullivan $35,000 in attorney’s fees for services
performed prior to remand by the Supreme Court of
Texas, $7,200 in attorney’s fees for services
performed after remand by the Supreme Court of
Texas, $1,621.60 in costs, $17,240.03 in other
expenses as justice and equity require, and a
$15,000 sanction against Abraham. (CR2:439–40).
xi
ISSUES PRESENTED
1. The trial court abused its discretion because it misapplied
the law and acted without reference to guiding principles
in awarding an extreme and excessively low amount of
reasonable attorney’s fees to Michael Quinn Sullivan.
2. No evidence supports the trial court’s award of $35,000
in attorney’s fees as damages before remand.
3. No evidence supports the trial court’s award of $7,200 in
attorney’s fees as damages after remand.
4. The trial court reversibly erred in commingling legally
insufficient damage elements with the broad-form
damage finding in Finding of Fact 8.
5. The trial court reversibly erred in commingling legally
insufficient damage elements with the broad-form
damage finding in Finding of Fact 9.
6. The trial court reversibly erred in failing to award
conditional appellate fees.
xii
STATEMENT OF FACTS
This defamation case was dismissed under Chapter 27 of the Texas Civil
Practice and Remedies Code, the Texas Citizens Participation Act (TCPA). Salem
Abraham sued Michael Quinn Sullivan based upon Abraham’s speculation that
Sullivan was the source for a news article regarding Abraham’s activities at a
political rally. (CR1:5).
The rally was a campaign event for then-State Representative Jim
Landtroop. Abraham, a member of the board of trustees of the Canadian
Independent School District, attended the event as a public servant to “make the
true facts known” about an ongoing debate in the campaign. (CR1:6–9). The
controversy was whether Landtroop’s opponent increased spending while serving
on the board of CISD. (CR1:615).
Daniel Greer, a reporter for AgendaWise, who did not attend the event,
reported on Abraham’s activities in a July 27, 2012 article. (CR1:9–10, 17). In the
article, statements were made indicating that Abraham was asked to leave the
meeting for improper conduct. (CR1:17).
In August 2012, Abraham contacted Greer and requested a correction to the
article. (CR1:11). Despite Greer’s making the correction, Abraham sued Greer and
AgendaWise. (CR1:18–19, 537). Salem Abraham v. Daniel Greer & Fix the Facts
Foundation d/b/a AgnedaWise (31st Dist., Hemphill Cnty.) (hereinafter “First
Lawsuit”).
Abraham’s First Lawsuit was dismissed under the TCPA. (CR1:534 Ex. 2 &
3). On appeal, the Supreme Court of Texas clarified the constitutional standard for
applying the New York Times actual malice rule to public officials in the context of
publication on the internet of allegedly defamatory statements, and remanded to
this Court for a determination of Abraham’s open-courts and due process
challenges. Greer v. Abraham, 489 S.W.3d 440 (Tex. 2016). This Court held that
(1) Abraham did not preserve his complaint regarding Greer’s invocation of the
journalist’s privilege, (2) Abraham did not preserve his argument that the district
court erred in ruling that Greer and AgendaWise were journalists, and (3) neither
the TCPA, nor the Reporter’s Shield Law, nor the two working in concert violate
the Open Courts provision of the Texas Constitution. Abraham v. Greer, 509
S.W.3d 609, 612, 613, 617 (Tex. App.—Amarillo 2016, pet. denied).
In April 2013, Abraham filed this lawsuit based on the same statements as in
the dismissed First Lawsuit. (CR1:5). Abraham alleged that Sullivan could have
been the source who provided information about Abraham’s activities at the rally
to Greer and AgendaWise. (CR1:14). Abraham admitted in his petition that there
was no evidence that Sullivan was Greer’s source or that the two ever discussed
Abraham. It is also undisputed that, like Greer, Sullivan was not in attendance at
2
the Levelland rally. Abraham alleged only that “it is a reasonable inference that the
person informing Daniel Greer about Salem [Abraham] was Michael Quinn
Sullivan” because they have daily discussions about politics. (CR1:15). Greer set
the record straight in Abraham’s First lawsuit when he testified that Sullivan did
not tell him anything about the Levelland meeting. (RR1:7–9).
Sullivan moved to dismiss this lawsuit under the TCPA. (CR1:534).
Pursuant to section 27.009 of the TCPA, Sullivan also requested reasonable
attorney’s fees, costs, expenses, and a sanction against Abraham.1 (CR1:544, 732–
38).
After conducting an evidentiary hearing, the trial court dismissed Abraham’s
defamation claim under the TCPA. (CR1:768). However, the trial court awarded
Sullivan only $6,500 in attorney’s fees and $1,500 in costs and expenses—a small
fraction of the fees, costs, and expenses that Sullivan proved. (CR1:768).
Sullivan appealed the award of attorney’s fees, costs, and expenses, as well as the
trial court’s refusal to award any sanctions, which the TCPA makes mandatory.
This Court affirmed in part and reversed and remanded in part. Sullivan v.
Abraham, 472 S.W.3d 677 (Tex. App.—Amarillo 2014), rev’d in part, 488 S.W.3d
294 (Tex. 2016). This Court affirmed the $6,500 attorney’s fees award on the basis
that considerations of equity and justice inform the determination of an attorney’s
1
TEX. CIV. PRAC. & REM. CODE § 27.009.
3
fees award under the TCPA. Id. at 682. This Court also concluded that Sullivan’s
evidence had not detailed every task performed and did not reflect the prevailing
legal rates in the Texas Panhandle. Id. at 683. The Court then remanded for the
trial court to award Sullivan mandatory sanctions against Abraham. Id. at 683.
The Supreme Court of Texas reversed, holding that considerations of justice
and equity do not inform the determination of an award of reasonable attorney’s
fees under the TCPA. Sullivan v. Abraham, 488 S.W.3d 294, 298–99 (Tex. 2016).
The case was then remanded to the trial court for a determination of (1) costs, (2)
reasonable attorney’s fees, and (3) other expenses as justice and equity require, (4)
plus a sanction against Abraham in an amount sufficient to deter him from filing
frivolous lawsuits in the future. Id. at 300.
On remand, Sullivan offered detailed time entries that identified the work
performed, the time required, the date on which the work was performed, the
lawyer who performed the work, and that lawyer’s hourly rate. (CR2:33–69). In
total, Sullivan sought:
$1,621.60 in costs;
$296,805.00 in attorney’s fees before remand;
$12,358.50 in attorney’s fees after remand by the Supreme Court of
Texas;
$17,240.03 in other expenses incurred by Sullivan that justice and
equity require to be awarded.
4
(CR2:412, 420).
The district court conducted another evidentiary hearing. This time, the trail
court awarded Sullivan:
$1,621.60 in costs;
$35,000.00 in attorney’s fees from the beginning of the case
until remand by the Supreme Court of Texas;
$7,200.00 in attorney’s fees after remand by the Supreme
Court of Texas; and,
$17,240.03 in other expenses incurred by Sullivan that justice
and equity require to be awarded.
(CR2:439–40).2
Sullivan timely requested Findings of Fact and Conclusions of Law.
(CR2:441). The trial court’s Findings of Fact and Conclusions of Law, which were
drafted by Abraham, were filed on March 20, 2017. (CR2:443). Sullivan then
timely objected to the trial court’s Findings of Fact and Conclusions of Law and
requested additional and amended findings and conclusions. (CR2:447). The trial
did not amend or supplement its findings and conclusions as requested by Sullivan
and thus overruled Sullivan’s objections.3 This appeal ensued. (CR2:480).
2
Pursuant to the judgment, post-judgment interest at the rate of 5% per annum accrues on all
amounts awarded until paid. (CR2:439–40)
3
See TEX. R. APP. P. 33.1(a)(2).
5
Sullivan moved to abate the appeal for remand to the district court for entry
of more specific findings of fact and conclusions of law. (App. C) This Court
denied Sullivan’s motion to abate on July 4, 2017. (App. D)
SUMMARY OF THE ARGUMENT
The district court had a mandatory duty to exercise sound discretion in
awarding Michael Quinn Sullivan reasonable attorney’s fees pursuant to the Texas
Citizens Participation Act (TCPA) and the mandate of the Supreme Court of
Texas. A reasonable fee is one that is moderate and fair, not excessive or extreme.
The district court awarded an excessively low and extreme fee of $35,000 for legal
services performed from the inception of this case through an appeal to this Court
and an appeal to the Supreme Court of Texas, and $7,200 for legal services
performed on remand from the supreme court. This was an abuse of discretion
because the trial court acted without reference to guiding principles—the test
established by the Supreme Court of Texas, the Arthur Andersen factors, and the
evidence adduced by the parties.
Also, no probative evidence supports Findings of Fact 5, 6, 7, 8, and 9,
which themselves emanate from several reversibly erroneous evidentiary rulings.
There is simply no way for a reasonable factfinder to consider the record in this
case and reach the decision that the trial court reached.
6
Reversal is required for the additional reason that the broad-form damages
findings in Findings 8 and 9 commingle invalid and/or legally insufficient elements
of damages, in violation of Crown Life Ins. Co. v. Casteel and its progeny. Finally,
the trial court reversibly erred in refusing to award Michael Quinn Sullivan
conditional appellate fees. When an award of trial court attorney’s fees is made
mandatory by statute, conditional appellate attorney’s fees in an amount supported
by the evidence are also mandatory.
ARGUMENT
I. The district court abused its discretion in failing to follow the test
established by the Supreme Court of Texas for determining reasonable
attorney’s fees.
A. The Supreme Court of Texas has directed that a reasonable fee is
fair and moderate, not excessive or extreme.
The supreme court held in this case that the TCPA requires an award of
reasonable attorney’s fees to a successful movant. Sullivan v. Abraham, 488
S.W.3d 294, 299 (Tex. 2016). The supreme court therefore remanded this case to
the district court for determination of reasonable attorney’s fees, with the
instruction that a reasonable attorney’s fee “‘is one that is not excessive or
extreme, but rather moderate or fair.’” Id. (citing Garcia v. Gomez, 319 S.W.3d
638, 642 (Tex. 2010)). Reasonable means fair, proper, or moderate under the
circumstances. Garcia v. Gomez, 319 S.W.3d 638, 642 n.3 (Tex. 2010) (citing
Reasonable, BLACK’S LAW DICTIONARY 1272 (7th ed. 1999)).
7
The reasonableness of a fee award requires a factfinder to consider the
factors set out in Arthur Andersen & Co. v. Perry Equipment Corp. 945 S.W.2d
812, 818 (Tex. 1997). Those factors include:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill required to perform the legal
services properly;
(2) the likelihood that the acceptance of the particular employment
will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and,
(8) whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been
rendered.
945 S.W.2d at 818; TEX. DISCIPLINARY R. PROF’L CONDUCT 1.04. A party seeking
to recover a reasonable attorney’s fee under the lodestar method must offer
evidence of the services performed, who performed them and at what hourly rate,
when they were performed, and how much time the work required. Long v. Griffin,
8
442 S.W.3d 253, 255 (Tex. 2014). This information provides the trial court
sufficient information to review a fee request. Id.For example, when an attorney testified that she used a billing system to
track and bill her time in a case, that she had billed her client for her work, and
specified the number of hours she had spent on the case as well as the hourly rate
in her client contract, the supreme court held that was sufficient evidence on which
to base an award of attorney’s fees. City of Lardeo v. Montano, 414 S.W.3d 731,
737 (Tex. 2013).
The reasonableness of an award of attorney’s fees is ordinarily left to the
sound discretion of the factfinder, and a reviewing court may not substitute its
judgment for that of the factfinder. Expelled Grain Prods., LLC v. Corn Mill
Enters, LLC, No. 07-14-00398-CV, 2016 WL 4413323, at *9 (Tex. App.—
Amarillo Aug. 17, 2016, pet. denied). To calculate reasonable attorney’s fees, the
factfinder should multiply the number of hours worked by the attorney’s hourly
rate. Lopez v. Bailon, No. 07-14-00442-CV, 2016 WL 4158034, at *5 (Tex.
App.—Amarillo Aug. 4, 2016, no pet.).
Sullivan provided far more evidence than the supreme court approved in
Montano. He offered detailed time entries from the inception of the case through
proceedings on remand. (CR2:36–59, 419–20). Sullivan also offered expert
testimony regarding the novelty and difficulty of the questions involved; the skill
9
required to perform the legal services properly; the fees customarily charged for
similar services (including fees customarily charged in the locality); the amount
involved and the results obtained; the time limitations imposed; and, the
experience, reputation, and ability of the lawyers performing the services.
(CR2:66–67, 414–17).
B. There is very little disagreement in the record about what an
award of reasonable fees should be.
1. Time and labor required, novelty and difficulty of the
questions, skill required to perform the legal services
properly
Despite the vitriol, the record before the district court does not disclose
significant disagreement about what a reasonable attorney’s fee award should be in
this case. Mr. Lovell, Abraham’s expert on attorney’s fees, opined that the number
of “hours incurred by an opposing party in litigation” is “relevant evidence to
consider in determining” a reasonable attorney’s fee. (CR2:86 ¶39). Abraham’s
expert then compares the hours Abraham’s lawyer spent on this litigation to those
spent by Sullivan’s counsel, offering the hours Abraham’s lawyers spent on the
case as a yardstick by which to measure reasonableness. (CR2:86 ¶¶39–40;
CR2:100).
Attorneys for the respective parties spent, apples to apples, a very similar
number of hours on this case—except when Abraham’s legal team spent far more
hours on the case. In the original trial court proceedings, Abraham’s counsel spent
10
177.2 hours on the case in addition to 23.85 paralegal hours. (CR2:82). Sullivan’s
counsel spent 140.9 hours on the case during that same period. (CR2:59, 82). The
only quibble Abraham ever offered about the number of hours Sullivan’s counsel
spent on this case in the original trial court proceedings pertained to 16 hours of
attorney time incurred on a Motion to Recuse. (CR2:87).4 Accordingly, there is no
reasonable disagreement in the record about the reasonableness of Sullivan’s legal
team spending 141 hours on this case in the original trial court proceedings—
during which time Abraham’s legal team spent 201 hours.
The record discloses no meaningful criticism or dispute by Abraham about
the reasonableness of the number of hours Sullivan’s counsel spent on this case in
the original trial court proceedings. Nor, in light of the evidence, could there be.
(CR2:86 (Abraham admitting that his counsel’s hours are relevant to determining
hours reasonably spent and using his counsel’s time as a yardstick by which to
measure the time Sullivan’s counsel spent on the case))
In the earlier proceedings in this Court:
• Abraham’s legal team spent 127.85 hours; and,
• Sullivan’s attorneys spent 172.3 hours.
4
In total, Sullivan’s counsel incurred $6,187.50 in legal fees on the Motion to Recuse.
(CR2:405) Abraham never disputed that this amount was incurred on that Motion.
11
(CR2:82). This discrepancy was reasonably explained by the fact that, as the
appellant, Sullivan reasonably filed a reply brief. Comparing apples to apples, the
hours spent by the parties on their respective principal briefs and oral argument are
remarkably similar:
• Abraham’s legal team spent 127.85 hours; and,
• Sullivan’s attorneys spent 131.2 hours.
(CR2:406–07). The 41-hour discrepancy between the two sides’ hours is due
entirely to the reply brief, as a meaningful examination of the detailed time entries
demonstrates. (CR2:407). No facts or evidence tend to contradict this explanation.
The hours the parties spent on this case in the Supreme Court of Texas
follow the same pattern. For the petition, response, the respective principal merits
briefs, and oral argument:
• Abraham’s legal team spent 250.72 hours; and,
• Sullivan’s attorneys spent 246.2 hours.
(CR2:407). The difference in the overall number of hours spent by the parties is
entirely accounted for by the Reply in Support of Sullivan’s Petition for Review
(51 hours) and Sullivan’s Reply Brief on the Merits (92.7 hours). (CR2:407).
Sullivan pointed out in detail to the district court that the discrepancies in the hours
spent on this case were explained by the preparation and filing of replies (which
appellants and petitioners are required to do under the Rules of Appellate
12
Procedure). (CR2:405–07). No facts or evidence tends to contradict this
explanation.
Accordingly, on the record before the district court, there was no meaningful
dispute about the reasonableness of Sullivan’s counsel’s having spent 128 hours on
this case in the original district court proceedings, or 131.2 hours on this case in the
first appeal in this Court, or 246.2 hours in the Supreme Court of Texas.
Regarding the novelty and difficulty of the questions involved and the skill
required to perform the legal services properly, it cannot be escaped that, on the
evidence before the district court, this Court had never used the term “anti-SLAPP”
in an opinion, and had cited Section 27.003 only once—in Abraham’s case against
Daniel Greer. (CR2:415). Abraham v. Greer, 474 S.W.3d 731 (Tex. App.—
Amarillo 2014), rev’d, 484 S.W.3d 440 (Tex. 2016). The district court’s decision
in this case was reversed in part by this Court, and in other respects by the
Supreme Court of Texas. Prior to the supreme court’s clarification of Texas law in
this case, there was considerable confusion among courts of appeal in Texas about
what considerations inform a determination of reasonable attorney’s fees under the
TCPA and how to review those awards. See, e.g., Rauhauser v. McGibney, 508
S.W.3d 377, 389–90 (Tex. App.—Fort Worth 2014, no pet.); Cruz v. Van Sickle,
452 S.W.3d 503, 526 (Tex. App.—Dallas 2014, pet. denied). On these facts, any
13
suggestion that the issues involved were not novel or the services required were not
difficult, (CR2:90), cannot be entertained.5
2. Likelihood that the acceptance of the particular
employment will preclude other employment by the lawyer
Abraham’s expert opined that, because the likelihood that Sullivan’s
attorneys would ever be retained by Abraham, this factor did not merit an upward
adjustment of fees. (CR2:91). Sullivan did not seek an upward adjustment of fees
based on this factor. (CR2:66).
3. Fee customarily charged in the locality for similar legal
services
There is little disagreement about rates in the record, too. Abraham admitted
that a rate of $375 would be reasonable for an experienced attorney, and $225
would be reasonable for an associate. (CR2:91). In the context of the evidence,
Abraham complained about partner rates in the district court and in this Court, and
about associate rates in the supreme court. Even if the district court agreed with
Abraham’s expert’s testimony about rates, the evidence supports, at most, an 8%
discount—$24,528 off of the $296,805 in fees at issue. (CR2:404–05).
5
Indeed, the statistics from the Texas Office of Court Administration demonstrate that it is
extraordinarily difficult to convince the Supreme Court of Texas to grant a petition for review,
like Sullivan did in this case. The supreme court grants only about 11% of the petitions filed in
that court in a fiscal year. OFFICE OF COURT ADMIN., ANNUAL STATISTICAL REPORT FOR THE
TEXAS JUDICIARY (FISCAL YEAR 2016) at Court-Level 3 (2016). By definition, all of the cases
granted involve important questions of law that impact the jurisprudence of the state. TEX.
GOV’T CODE § 22.001.
14
4. Amount involved and results obtained
Abraham sought tens of millions of dollars in damages in his defamation
suit. (RR1:66. See also CR1:325 (claiming to have been damaged in “very large
amounts of money”)) Abraham’s expert’s testimony avoided acknowledging this
indisputable fact, instead preferring to cast the first appeal as an attempt to recover
the trial fees not awarded in the first judgment. (CR2:91–92). That evidence is
incorrect and incomplete; no reasonable factfinder could have credited it as a
matter of law.
Even after the dismissal of Abraham’s defamation claim, significant issues
remained. They included an award of costs, reasonable attorney’s fees, other
expenses, and a sanction—potentially very large—that Texas law required be
awarded to Sullivan. Sullivan v. Abraham, 472 S.W.3d 677, 683 (Tex. App.—
Amarillo 2014), rev’d on other grounds, 488 S.W.3d 294 (Tex. 2016). See, e.g.,
Order, McGibney v. Retzlaff, No. 67-270669-14, 2016 WL 1703694, at *4 (67th
Dist. Ct., Tarrant Cnty.) (Apr. 14, 2016).6 Three significant legal issues also
remained: (1) whether a district court had discretion under the TCPA to refuse to
award a sanction that the TCPA says “shall” be awarded, TEX. CIV. PRAC. & REM.
CODE § 27.009(a)(2); and, (2) whether considerations of justice and equity properly
inform an award of costs, id. § 27.009(a)(1); and, (3) whether considerations of
6
Available at App. E.
15
justice and equity properly inform a district court’s determination of a reasonable
attorney’s fee, id. § 27.009(a)(1).
Regarding the results obtained, Sullivan prevailed on all three legal issues.
Sullivan, 472 S.W.3d at 683 (issue 1); Sullivan, 488 S.W.3d at 299 (issues 2 and
3). Sullivan also obtained a $15,000 sanction, Sullivan has now been awarded the
entirety of his costs and other expenses up through the time of the district court’s
judgment, and Sullivan obtained a significantly increased award of attorney’s fees.
(CR2:439–40).
5. The time limitations imposed by client or circumstances
Neither party sought an adjustment of attorney’s fees on the basis of any
time limitation. (CR2:67, 92).
6. Nature and length of professional relationship between
lawyer and client
There is no basis in the record for any specific adjustment of an attorney’s
fee award based on the nature and length of the professional relationship between
Sullivan and his counsel. (CR2:67, 93). Nor did Abraham’s expert provide any
specific basis for his opinion that Sullivan’s counsel had represented him for any
length of time, or that the rates sought were not discounted. There is no evidence
anywhere that Sullivan’s counsel represented him in any litigation before Salem
Abraham sued Sullivan; they did not.
16
7. Experience, reputation, and ability of the lawyers
There is no dispute between the parties regarding an adjustment of the
attorney’s fee award based on the experience, reputation, or ability of any lawyer
involved in this case. (CR2:67, 93).
8. Whether the fee is fixed or contingent on results obtained or
uncertainty of collection
Neither party sought an adjustment of fees based on a contingency of
collection before the legal services were performed. (CR2:67, 93).
C. The district court failed to apply the law correctly and acted
without reference to guiding principles.
The determination of whether a trial court abused its discretion is a question
of law. Jackson v. VanWinkle, 660 S.W.2d 807, 810 (Tex. 1983). A trial court
abuses its discretion when it acts arbitrarily and unreasonably, without reference to
guiding rules or principles, or when it misapplies the law to the established facts of
the case. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). A trial
court has no discretion to determine what the law is or in applying the law to the
facts and, consequently, the trial court’s failure to analyze or apply the law
correctly is an abuse of discretion. In re Am. Homestar of Lancaster, Inc., 50
S.W.3d 480, 483 (Tex. 2001).
The district court’s determination that a reasonable attorney’s fee for
defeating a claim that sought tens of millions of dollars in damages, and then
17
prevailing on two successive appeals was $35,000 is an abuse of discretion that
resulted from the district court’s acting without reference to guiding principles and
failing to apply the law as instructed by the Supreme Court of Texas in this very
case correctly. The award of attorney’s fees is extreme and excessively low and
must be reversed.
As demonstrated above, there was little disagreement between the parties
regarding what would be a reasonable attorney’s fee in this case. As shown above:
• Comparing similar tasks, the parties spent nearly the same number of
hours on this case.
• The hours discrepancy between the parties comes entirely from the
reply brief in the first appeal in this Court (41.1 hours, CR2:34–56,
407), the Reply in Support of Sullivan’s Petition for Review (51
hours, CR2:34–56, 407), and Sullivan’s Reply Brief on the Merits in
the Supreme Court of Texas (92.7 hours, CR2:34–56, 407). Because
of the procedural posture of this case, Abraham’s counsel did not
prepare replies. They performed substantially less work, and
nevertheless incurred in excess of $130,000 in attorney’s fees prior to
remand. (CR2:82–83).
• Among the Arthur Andersen factors, there was material divergence
between the parties’ positions only with respect to the amount at issue
and the results obtained. But no expert opinion can undo the fact that
Abraham himself sued for tens of millions of dollars, or that Sullivan
prevailed on the legal issues, clarified important Texas law, and stood
to gain significant sums by virtue of the original appeal. Abraham’s
expert’s testimony was incorrect as a matter of law, as the opinions of
this Court and the supreme court show, and as the judgment of the
district court also demonstrates.
If the district court had considered the Arthur Andersen factors in order to
award a fair or moderate attorney’s fee as instructed by the Supreme Court of
18
Texas, it could not have awarded $35,000 for all work done prior to remand
because:
• The $35,000 award is substantially less than the attorney’s fees
Abraham says he reasonably incurred in the original trial court
proceedings. (CR2:82);
• When awarding trial attorney’s fees is mandated by statute, an
award of conditional appellate fees supported by evidence is
also mandatory. Ventling v. Johnson, 466 S.W.3d 143, 154
(Tex. 2015) (concluding that a prevailing party in the district
court who successfully appeals is entitled to appellate
attorney’s fees)7;
• Any evaluation of the results obtained must necessarily take
into account the facts: (1) Abraham himself put tens of millions
of dollars at issue; (2) Sullivan prevailed on appeal in this Court
and in the supreme court; and, (3) Sullivan has obtained more
favorable rulings from the district court on every issue in the
case;
• Even using the lowest number of hours any party said was
reasonable and the lowest rate for any attorney that any
evidence suggested was reasonable for every single one of
those hours, the award would have had to be more than triple
what it was; and,
• Using rates Abraham acknowledges are reasonable yields an
8% discount from $296,805 in pre-remand fees. The district
court acted without reference to guiding principles and entered
a judgment that reflected an 88% discount on the reasonable
attorney’s fees Sullivan proved.
To calculate reasonable attorney’s fees, the factfinder should multiply the
number of hours worked by the attorney’s hourly rate. Lopez v. Bailon, No. 07-14-
7
See infra Section IV.
19
00442-CV, 2016 WL 4158034, at *5 (Tex. App.—Amarillo Aug. 4, 2016, no pet.).
When a district court gives lip service to some of the relevant factors, but fails to
act with reasoned reference to them, the proper course is to reverse. Lowe v.
Johnson Cnty., No. 03A01-9309-CH-00321, 1995 WL 306166, at *8 (Tenn. Ct.
App. May 19, 1995).
II. The district court’s judgment must be reversed because there is no
evidence to support Findings of Fact 5, 6, 7, 8, or 9.
There is no evidence to support the district court’s Findings of Fact 5, 6, 7,
8, or 9. (CR2:444–45). Findings 5, 6, 7, 8, and 9 would not have been made absent
erroneously sustaining Abraham’s objections to Sullivan’s evidence. (CR2:397–98,
439).
In a nonjury trial, findings of fact have the same force and dignity as a jury's
verdict. Dallas Cnty. Constable Precinct No. 5 v. Garden City Boxing Club, Inc.,
219 S.W.3d 613, 615–16 (Tex. App.—Dallas 2007, no pet.). When a complete
reporter's record is filed, a trial court's findings of fact are reviewed for legal
sufficiency under the same standard as is applied to a jury verdict. Green v. Alford,
274 S.W.3d 5, 23 (Tex. Ap.—Houston [14th Dist.] 2008, pet. denied).
In conducting a legal sufficiency review, an appellate court reviews the
record in the light most favorable to the challenged finding, crediting favorable
evidence if a reasonable factfinder could and disregarding contrary evidence unless
a reasonable factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802,
20
827 (Tex. 2005). Evidence is legally sufficient if it “rises to a level that would
enable reasonable and fair-minded people to differ in their conclusions.” Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Merrell Dow
Pharms., Inc. v. Havner, 953 S.W.3d 706, 711 (Tex. 1997)).
Evidence is legally insufficient when (a) there is a complete absence of
evidence of a vital fact, (b) the court is barred by rules of law or evidence from
giving weight to the only evidence offered to prove a vital fact, (c) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of a vital fact. City of Keller, 168 S.W.3d at
810.
Accordingly, an unsupported or generalized conclusion has no probative
force and is legally insufficient. See Hancock v. Variyam, 400 S.W.3d 59, 69 (Tex.
2013); Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232
(Tex. 2004). As a result, a finding based on an unsupported or generalized
conclusion cannot survive a no evidence challenge. See Roger v. Zanetti, ___
S.W.3d ____, 2017 WL 1553154, at *7 (Tex. 2017); Kindred v. Con/Chem, Inc.,
650 S.W.2d 61, 63 (Tex. 1983).
A. The district court abused its discretion and failed to apply the law
correctly in sustaining Abraham’s objections.
The district court summarily sustained Abraham’s objections to Sullivan’s
attorney’s fees application. (CR2:439). This was reversible error.
21
1. There is evidence of the fees customarily charged in the
locality for similar services.
Contrary to Abraham’s objections 1 and 2, (CR2:397, 439), Sullivan offered
evidence of fees customarily charged in the locality for similar services. (CR2:34,
66; CR2:410 (issue preserved)). Abraham’s own expert also offered this evidence.
(CR2:91). Because there is evidence of reasonable rates in the locality—from both
parties’ respective experts, there is some evidence of a reasonable rate in the
locality. City of Keller, 168 S.W.3d at 827.
2. Sullivan offered ample evidence from which both Abraham
and the district court could engage in a meaningful review
of the fees sought.
Sustaining Abraham’s objection 3, (CR2:397, 439), was an abuse of
discretion because the Supreme Court of Texas has explicitly permitted recovery of
fees under the lodestar method when actual billing records did not even exist. Long,
442 S.W.3d at 255–56; El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 764 (Tex.
2012).
Sullivan provided detailed information about work performed, who
performed the work, when, how long it took, and the rate of the attorney
performing the work by expert testimony on June 24, 2016. (CR2:21, 34–56).
Texas law requires no more. Long, 442 S.W.3d at 255.
The district court signed its final judgment eight months later, on February
28, 2017. (CR2:440). In the eight months between Sullivan’s expert’s testimony
22
and the final judgment, the record discloses no evidence that Abraham ever sought
to discover Sullivan’s counsel’s billing records. This is an independent reason for
which the district court’s sustaining Abraham’s objection was an abuse of
discretion. Abraham v. Greer, 509 S.W.3d 609, 617 (Tex. App.—Amarillo 2016,
pet. denied).
Nor did Abraham ever identify any specific testimony—in more than 20
pages of time descriptions—that was objectionable for any reason. A global, non-
specific objection constitutes no objection as a matter of law. Objections must raise
a specific failure to comply with the rules of procedure or evidence to the attention
of the court. Wilkins v. Royal Indemn. Co., 592 S.W.2d 64, 68 (Tex. Civ. App.—
Tyler 1979, no writ). Because Abraham’s objection failed to provide a specific
basis for the district court to make an intelligent decision, Abraham’s objection
was no objection as a matter of law and it was an abuse of discretion for the district
court to sustain it. Sciarrilla v. Osborne, 946 S.W.2d 919, 924 (Tex. App.—
Beaumont 1997, pet. denied).
3. It was an abuse of discretion to sustain Abraham’s
testimonial objections.
The district court also abused its discretion in sustaining Abraham’s
objections 4, 5, 7, 8, 9, 10, and 12 because they do not offer a legal basis for
excluding evidence. (CR2:398, 439). Instead, they are in the nature of expert
23
opinion testimony that, in effect, seeks discounts of the reasonable attorney’s fees
sought by Sullivan:
Motion to Recuse $ 6,187.50
Partner rates in the first district court proceedings $ 13,159.50
Partner rates in the court of appeals $ 5,604.00
Associate rates in the Supreme Court of Texas $ 5,764.50
“Objections” 4, 5, 7, 8, 9, 10, and 12 are mere comments on the weight of
evidence or attempts to cloak expert testimony as a legal objection. They fail to
specify a legal basis, no legal basis is apparent from the context, and no legal basis
exists for sustaining these “objections.” It was therefore an abuse of discretion for
the district court to sustain them. Sciarrilla v. Osborne, 946 S.W.2d 919, 924 (Tex.
App.—Beaumont 1997, pet. denied) (General objections are no objection at all.).
4. Blended rates are commonplace and comply with the Texas
Disciplinary Rules.
The district court failed to apply the law correctly in sustaining Abraham’s
objection 6. (CR2:398, 439). Blended rates are commonplace and comply with the
Texas Disciplinary Rules of Professional Conduct. See, e.g., Khan v. Chaudhry,
No. 09-14-0479-CV, 2016 WL 1158734, at *5–6 (Tex. App.—Beaumont Mar. 24,
2016, pet. denied); D’Lux Movers & Storage v. Fulton, No. 02-06-0019-CV, 2007
WL 1299400, at *4–5 (Tex. App.—Fort Worth May 3, 2007, pet. denied); 1 TEX.
PRAC. GUIDE WILLS, TRUSTS & ESTATE PLANNING § 2:63 (Dec. 2016); Mark D.
24
White & L. Hayes Fuller, III, Attorney Fees Update, 66 THE ADVOC. (TEXAS) 144,
173 (Spring 2014) (acknowledging the frequency with which blended rates are
employed); Robert B. Gilbreath, Caught in a Crossfire, TEX. TECH L. REV. 139,
178 (1996) (recommending the increased use of blended rates).
5. Abraham’s litigation tactics, not the amounts Sullivan
seeks, disincentivize the cessation of litigation. In any event,
this is not a recognized basis for a legal objection.
Nowhere in the rules of procedure or evidence is there an objection for the
disincentivization of the cessation of litigation. Sustaining an objection that lacks a
basis in law was an abuse of discretion. See, e.g., Simmons v. State, 100 S.W.3d
484, 492–93 (Tex. App.—Texarkana 2003, pet. ref’d).
Moreover, the evidence in this case is clear regarding the cessation of
litigation. Abraham defended an award of $6,500 in attorney’s fees all the way to
the Supreme Court of Texas, all the while knowing that he had incurred nearly
$50,000 in fees in the original trial court proceedings. (CR2:82). Now, having
acknowledged that the hours his legal team spent on this litigation are a relevant
factor in ascertaining a reasonable number of hours for Sullivan’s legal team to
have spent, and knowing that, apples to apples, the parties spent nearly an identical
number of hours on this case, Abraham defends an award of $35,000 in attorney’s
fees while knowing that his legal team incurred 3.4 times that amount. (CR2:82–
83). Abraham’s own unreasonable positions—themselves a lagniappe on his
25
admission that his defamation claim was frivolous from the start—have prohibited
the cessation of this litigation. (RR3:94–95).
B. There is no evidence to support Findings of Fact 5, 6, 7, 8, and 9.
1. Salem Abraham sued Sullivan for defamation despite
knowing prior to filing suit that Sullivan was not Greer’s
source.
No evidence supports Finding of Fact 5 or 6. (CR2:444; CR2:448
(preserved)) Abraham himself admitted facts that necessarily mean this lawsuit
was filed in violation of Rule 13 of the Texas Rules of Civil Procedure. Abraham’s
filing this lawsuit was an effort to punish Michael Quinn Sullivan for Daniel
Greer’s actions. (CR1:9–12). Abraham’s pleadings acknowledge that Michael
Quinn Sullivan was not present at the Honeycomb Pie Shop event that was the
subject of Daniel Greer’s blog post. (CR1:14–15). Abraham also acknowledges
that Michael Quinn Sullivan published a story about the same event. (CR1:14).
Abraham sued Sullivan for alleged libel done by Greer and AgendaWise, not for
anything Sullivan himself did. (CR1:9–12).
When Abraham filed this lawsuit, Daniel Greer had already sworn under
oath that Michael Quinn Sullivan was not his source. (RR3:94). Abraham was
present when Greer made such testimony. (RR3:94). Abraham admitted that he had
no facts tending to contradict Greer’s sworn testimony. (RR3:94).
26
Michael Quinn Sullivan had also already sworn under oath that he had
provided no information to Greer regarding Greer’s story. (RR3:95). Abraham was
present during this testimony, too. (RR3:95). Abraham admitted that he had no
facts tending to contradict Sullivan’s sworn testimony. (RR3:95).
Abraham further admitted that, even after filing this lawsuit, he had no
information tending to inculpate Michael Quinn Sullivan. (RR3:93). He sued him
anyway. Based on Abraham’s own admissions, Abraham’s purpose for suing
Michael Quinn Sullivan cannot have been to recover damages from Sullivan, as he
pled. (CR1:15).
Abraham also admitted in his pleadings that he wanted to discover how
Michael Quinn Sullivan had learned about the Levelland meeting. (CR1:15). That
information, however, would not make any fact in the case—whether background
or material—more or less likely to be true. This case was filed as a fishing
expedition unrelated to any concern about Sullivan’s having defamed Abraham, as
Abraham’s own pleadings demonstrate as a matter of law. This is an improper
purposes for filing a lawsuit as a matter of law. See In re Alford Chevrolet-Geo,
997 S.W.2d 173, 180–81 (Tex. 1999).
Finally, the judgment dismissing Abraham’s defamation claim against
Sullivan was entered because the lawsuit was based on, related to, or in response to
Michael Quinn Sullivan’s exercise of the right to speak on a matter of public
27
concern and Abraham had no evidence to support one or more essential elements
of his claim. (CR1:534, 768). TEX. CIV. PRAC. & REM. CODE § 27.003(a). Findings
5 and 6 are contrary to Conclusion of Law 13. (CR2:445). Furthermore, the district
court lost plenary power to alter or amend that judgment years ago, and lacked
power to enter findings contrary to the portions of that judgment that became final
years ago. No evidence supports the district court’s Finding 5 or Finding 6 that this
lawsuit emanated from any sincere and justifiable concern about Abraham’s
reputation.
2. No evidence supports a relationship between Sullivan and
Greer such that it was proper to infer that Sullivan could
have been Greer’s source.
No evidence supports Finding 7. (CR2:444; CR2:448 (preserved)) When he
filed this lawsuit, Abraham had only surmise and suspicion about any relationship
between Greer and Sullivan. Sullivan published a non-defamatory article about the
Levelland meeting in one forum two days before Greer published an allegedly
defamatory article in a different forum. (CR1:14). Sullivan was not present at the
Levelland meeting and Abraham knew it. (CR1:14–15). Sullivan denied under oath
having been Greer’s source before this lawsuit was filed, and Greer denied under
oath that Sullivan was his source before this lawsuit was filed. (RR1:93–95).
Abraham admitted that he had “no facts” to support his surmise and suspicion.
(RR1:93). No evidence supports Finding 7.
28
3. The award to Michael Quinn Sullivan of $35,000 in
attorney’s fees through remand from the Supreme Court
relies on an incorrect legal standard and has no evidence to
support it.
The district court’s Finding 8 determines that “reasonable and necessary
attorneys’ fees for the services of [Sullivan’s] attorneys, from the beginning of this
case until remand by the Supreme Court of Texas to this Court, is [sic] in the
amount of $35,000. (CR2:444–45).
First, the district court applied the incorrect legal standard to the evidence in
finding an amount of “reasonable and necessary” attorney’s fees. (CR2:444;
CR2:449 (preserved)) The TCPA requires an award of “reasonable attorney’s
fees,” but the district court added “necessary”—an element not present in the
TCPA. TEX. CIV. PRAC. & REM. CODE § 27.009(a)(1). “Reasonable” is distinct
from “reasonable and necessary,” as this Court has previously held. Busteed v.
Coldspring Oakhurst Consol. Indep. Sch. Dist., No. 07-02-00103-CV, 2002 WL
31549428, at *3 (Tex. App.—Amarillo Nov. 18, 2002, no pet.). See also Murrco
Agency, Inc. v. Ryan, 800 S.W.2d 600, 606 (Tex. App.—Dallas 1990, no writ)
(holding that, unlike the provisions of TEX. BUS. & COM. CODE § 17.50(d), which
requires that attorney’s fees must be necessary in a DTPA proceeding, Civil
Practice & Remedies Code section 38.001 requires only that the amount of
attorney’s fees be reasonable); Prairie Valley Ind. Sch. Dist. v. Sawyer, 665
S.W.2d 606, 611 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.) (holding that
29
former article 2226 of the Texas Revised Civil Statutes required testimony that
attorney’s fees are reasonable and did not require evidence of necessity). Applying
an incorrect legal standard is, without more, reversible error. Sullivan, 488 S.W.3d
at 299.
In addition, no evidence supports Finding 8. (CR2:444). As shown above,
the parties’ respective evidence regarding the amount that constitutes a reasonable
attorney’s fee in this case does not diverge significantly. The discrepancies in the
parties’ evidence were:
• Abraham sought some $30,715.50 in discounts off of the
$296,805 in reasonable fees prior to remand. (CR2:403–10);
• There was no dispute that, at a minimum, 589 hours was a
reasonable number of hours to have spent on this case prior to
remand. (CR2:59, 82–83, 86); and,
• The unrefuted basis for the difference in the number of hours
spent on this case by the parties is, based on the evidence,
entirely attributable to the prior reply brief in this Court, the
reply in support of Sullivan’s petition for review, and Sullivan’s
reply brief on the merits in the supreme court. Supra subsection
I.B.(1).
There is no basis in the evidence for reducing the reasonable attorney’s fees
that Sullivan proved according to the evidentiary standards established by the
supreme court by some $260,000. The district court nevertheless disregarded the
evidence and awarded an arbitrary sum. Because no evidence supports this
30
Finding, Finding 8 and the portion of the judgment that directly flows from it must
be reversed. (CR2:439 ¶2, 444).
4. The award to Michael Quinn Sullivan of $7,200 in
attorney’s fees for work after remand relies on an incorrect
legal standard and has no evidence to support it.
Like Finding 8, Finding 9 discloses that the district court applied an
incorrect legal standard by determining “reasonable and necessary” attorney’s fees,
in contravention of the TCPA, which mandates an award of reasonable attorney’s
fees. (CR2:444; CR2:449 (preserved)). TEX. CIV. PRAC. & REM. CODE § 27.009(a);
Busteed v. Coldspring Oakhurst Consol. Indep. Sch. Dist., No. 07-02-00103-CV,
2002 WL 31549428, at *3 (Tex. App.—Amarillo Nov. 18, 2002, no pet.). Murrco
Agency, Inc. v. Ryan, 800 S.W.2d 600, 606 (Tex. App.—Dallas 1990, no writ);
Prairie Valley Ind. Sch. Dist. v. Sawyer, 665 S.W.2d 606, 611 (Tex. App.—Fort
Worth 1984, writ ref’d n.r.e.). Applying an incorrect legal standard is, without
more, reversible error. Sullivan, 488 S.W.3d at 299.
Additionally, no evidence supports reducing the amount of reasonable
attorney’s fees Sullivan proved to the standard required by the supreme court from
$12,358.50 to $7,200. Abraham never controverted, questioned, or challenged any
time or task entry or rate charged supporting this award of fees. (CR2:419–20).
Accordingly, there was no evidence supporting Finding 9 or the portion of the final
judgment that flows directly from it. (CR2:439 ¶3, 444).
31
III. In Findings of Fact 8 and 9, the trial court reversibly erred by
commingling in a broad-form finding multiple damages elements that
are legally insufficient.
A. Reversible error is presumed under Casteel and its progeny.
Reversible error is presumed when a broad-form finding commingles
elements that are legally insufficient. Thota v. Young, 366 S.W.3d 678, 680 (Tex.
2012); Zaidi v. Shah, 502 S.W.3d 434, 439–40 (Tex. App.—Houston [14th Dist.]
2016, pet. denied). Reversible error is presumed because the reviewing court
cannot determine whether the finding is based on an invalid element. Crown Life
Ins. Co., v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000). The Supreme Court of Texas
in Casteel explained as follows:
It is fundamental to our system of justice that parties have the
right to be judged by a jury properly instructed in the law. Yet,
when a jury based a finding of liability on a single broad-form
question that commingles invalid theories of liability with valid
theories, the appellate court is often unable to determine the
effect of this error. The best the court can do is determine that
some evidence could have supported the jury’s conclusion on a
legally valid theory. To hold this error harmless would allow a
defendant to be held liable without a judicial determination that
a factfinder actually found that the defendant should be held
liable on proper, legal grounds.
Accordingly, we hold that when a trial court submits a single
broad-form liability question incorporating multiple theories of
liability, the error is harmful and a new trial is required when
the appellate court cannot determine whether the jury based its
verdict on an improperly submitted invalid theory.
...
[I]t is impossible for us to conclude that the jury’s answer was
not based on one of the improperly submitted theories.
32
Id. at 388-89.
The supreme court subsequently expanded Casteel to apply to a broad-form
damages finding that includes legally insufficient elements.
A trial court’s error in instructing a jury to consider erroneous
matters, whether an invalid liability theory or an unsupported
element of damage, prevents the appellant from demonstrating
the consequences of the error on appeal.
...
We hold that Casteel’s reasoning applies equally to broad-form
damage questions, and under its rationale we conclude that the
charge error in this case was harmful.
Harris Cnty. v. Smith, 96 S.W.3d 230, 236 (Tex. 2002); see Thota, 366 S.W.3d at
680 (“We have held that reversible error is presumed when a … broad-form
question comingles damage elements that are unsupported by legally sufficient
evidence.”).
B. Casteel and its progeny apply to findings of fact.
Although Casteel and Harris County arose in the context of jury trials, at
least four appellate courts in Texas have recognized that their principles also apply
to findings of fact made by a trial court after a bench trial.8 The most notable of
those cases is Zaidi v. Shah, where the Fourteenth Court of Appeals reversed on
that basis and explained as follows:
8
See Zaidi v. Shah, 502 S.W.3d 434, 440 (Tex. App.—Houston [14th Dist.] 2016, pet. denied);
Town Ctr. Mall, L.P. v. Dyer, 2015 WL 5770583, at *7 (Tex. App.—Fort Worth 2015, pet.
denied); In re Marriage of C.A.S and D.P.S., 405 S.W.3d 373, 394-95 (Tex. App.—Dallas 2013,
no pet.); Tagle v. Galvan, 155 S.W.3d 510, 516 (Tex. App.—San Antonio 2004, no pet.).
33
Casteel and its progeny are intended to remedy the trial court’s
error in failing to eliminate—or at to segregate—the
factfinder’s consideration of invalid claims [or elements]. The
error is harmful when it results in a broad-form finding that
prevents the reviewing court from determining whether the
finding is based on valid claims [or elements]. The same error
can arise, with the same resulting harm, when the trial court is
the factfinder.
502 S.W.3d 434, 440 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); see
Harris Cnty., 96 S.W.3d at 233.
In Zaidi, the trial court made findings of fact that included a cumulative
damage award for multiple causes of action. Id. at 438–39. Because many of the
liability findings were legally insufficient, it was impossible for the court of
appeals to know whether the broad-form damage finding was based on a legally
insufficient claim. Id. at 439, 441, 442–44, 445. The appellants in Zaidi requested
the trial court to issue additional findings of fact identifying the specific damages
awarded for each claim, but the trial court refused. Id. at 437, 440–41. As a result,
the court of appeals reversed, based on the Casteel line of cases, and reasoned as
follows:
The trial court’s global findings were burdened with more
causes of action that the evidence would bear, so we must
reverse and remand unless we are ‘reasonably certain that the
[factfinder] was not significantly influenced’ by the inclusion of
invalid theories of recovery. Because it is impossible determine
the extent to which the trial court awarded actual and punitive
damages on an invalid basis, we have no such reasonable
certainty. We instead conclude that the trial court’s error … ‘is
34
harmful because it prevent[ed] proper presentation of the case
on appeal.’
...
As in the Casteel line of cases, we must remand the cause for a
new trial.
Id. at 444–45.
This case, like Zaidi, also requires reversal based on Casteel and its progeny
because the trial court made two findings of fact (No. 8 and No. 9) that award
attorney’s fees as actual damages under the TCPA, and many of the elements
accompanying each damage finding are legally insufficient.9 (CR2:444–45).
C. Finding of Fact 8
Finding of Fact 8 awards Sullivan attorney’s fees as actual damages “from
the beginning of this case until remand by the Supreme Court of Texas to this
Court … in the amount of $35,000.” (CR2:444). This damages finding is “based
upon” the following elements:
(1) “the Court’s knowledge of attorney’s fees, including the rates
customarily charged in the locality for similar services;”
(2) “the evidence presented on the fees customarily charged in the
locality for similar services;”
9
TEX. CIV. PRAC. & REM. CODE § 27.009 (“Damages and Costs”) (the actual “damages” that a
court shall award under Section 27.009(a) include “reasonable attorney’s fees, and other
expenses incurred in defending against the legal action as justice an equity may require.”); see
Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.—
Dallas 2014, no pet.) (recognizing that attorney’s fees may be recovered as actual damages when
provided for by statute) (quoting Eberts v. Businesspeople Personnel Servs., Inc., 620 S.W.2d
861, 863 (Tex. Civ. App.—Dallas 1975, writ ref’d n.r.e.)).
35
(3) “the Court’s observation and evaluation of what amount of legal
services were provided by the attorneys for the parties;”
(4) “this Court’s evaluation of what level of attorney services were
reasonable and necessary in this case;”
(5) “this Court’s evaluation of the duplication of legal services, and”
(6) “the legal services which this Court believes and finds were
excessive, unreasonable and unnecessary.” (CR2:444).
The vast majority of these damage elements are conclusory and unsupported
by any detail or specification. Elements 1, 3, 4, 5, and 6 broadly reference the trial
court’s “knowledge,” “evaluation,” “observation and evaluation,” and, what the
trial court “believes and finds;” but none of the Elements sets forth what the trial
court’s “knowledge,” “evaluation,” “observation and evaluation,” and “belief”
actually is for the respective elements and they are not contained in the post-
remand record.10 (CR2; RR3).
Additionally, Elements 3, 4, and 5 each reference an “evaluation” that was
made by the trial court about “what amount of legal services were provided by the
attorneys for the parties” [Element 3]; “what level of attorney services were
10
Element 2 references the “evidence” that was “presented on the fees customarily charged in
the locality for similar legal services.” That evidence shows that the rates charged by Abraham’s
counsel were within $10 dollars an hour of the blended rate charged by Sullivan’s counsel.
(CR2:453–54) That evidence also shows that the total fees charged by Abraham’s counsel from
the inception of the case through the time that the case was remanded to the trial court by the
Supreme Court of Texas was $131,402.58. (CR2:449) As a result, Element 2 also does not
support the trial court’s finding of $35,000 in fees as actual damages under the TCPA.
(C2R:445)
36
reasonable and necessary in this case” [Element 4]; and, “the duplication of legal
services.” [Element 5]. (CR2:444).
The plain, ordinary meaning of “evaluation” is to “determine” or “assess.”11
However, Elements 3, 4, and 5 do not set forth the trial court’s actual
determination or assessment about the matters listed in each element, and, again,
that determination or assessment is not in the reporter’s record from the post-
remand hearing. (CR2; RR3). As a result, this Court can only speculate about what
the trial court’s “evaluation” is that is referenced in Elements 3, 4, and 5.
The same problem exists for Element 6. (CR2:444). It references “the legal
services which [the trial court] believes and finds were excessive, unreasonable,
and unnecessary.” However, there is no specification in Element 6 about what the
trial court’s “belief” and “finding” actually is with respect to any legal services that
“were excessive [and] unnecessary.” (CR2:444). That “belief” and “finding” is
also not included the post-remand record. (CR2; RR3). Once again, this Court
must guess about the trial court’s “belief” and “finding” that is referenced in
Element 6 and speculate how that “belief” and “finding” might support the broad-
form damages finding of $35,000.
Accordingly, Elements 1, 3, 4, 5, and 6 that accompany the broad-form
damage finding in Finding of Fact Number 8 are unsupported, generalized
11
Webster’s New World Dictionary, Second College Edition at 484; The New Roget’s Thesaurus
in Dictionary Form at 175.
37
conclusions and are legally insufficient. (CR: 444–45). See Hancock, 400 S.W.3d
at 69; Coastal Transp. Co., 136 S.W.3d at 232.
In addition, Elements 4 and 6 explicitly include the consideration of
necessity, which is not part of the controlling legal standard under the TCPA. TEX.
CIV. PRAC. & REM. CODE § 27.009(a)(1); Busteed, 2002 WL 31549428, at *3.
Like in Zaidi, Sullivan objected to the trial court that the damage elements
accompanying Finding of Fact Number 8 are conclusory, inadequate, and legally
insufficient. (CR2:449–55). Sullivan also requested the trial court to issue
additional findings of fact that specifically identify the basis for an award of
attorneys’ fees as damages in Finding of Fact 8, but the trial court refused.12
(CR2:449-55). Sullivan further objected to the consideration of the necessity of
legal services as not related to the applicable legal standard under the TCPA.
(CR2:449). The trial court’s error in overruling Sullivan’s objection and refusing
his request for additional, specific findings resulted in a broad-form damage
finding accompanied by six damage elements; five of which are legally
insufficient.13 (CR2:444).
12
See Zaidi, 502 S.W.3d at 440 (“The Turnaround parties requested additional findings of fact,
asking the trial court to identify the damages awarded to each of the Borrowers for each cause of
action, but the trial court did not do so. This issue therefore has been preserved for our
review.”).
13
Sullivan also asked this Court to abate this appeal and require the trial court to make more
specific findings of fact in lieu of these conclusory damage elements. This Court denied
Sullivan’s request on July 5, 2017.
38
This error is reversible under Casteel and its progeny because it prevents the
Court from determining the extent to which the finding of $35,000 in attorney’s
fees as damages in Finding of Fact No. 8 is based on an invalid/legally insufficient
element. Thota, 366 S.W.3d at 680; Harris County, 96 S.W.3d at 231, 233–34;
Zaidi, 502 S.W.3d at 439–41.
D. Finding of Fact 9
That same problem exists with Finding of Fact 9. It awards attorneys’ fees
as actual damages “after remand by the Supreme Court” in the amount of $7,200.”
(CR2:445). This damages finding is “based upon” the following elements:
(1) “the Court’s knowledge of fees customarily charged in the
locality for similar legal services;”
(2) “the evidence presented on the fees customarily charged in the
locality for similar services;”
(3) “[the] evidence of the reasonable number of hours worked for
similar work;”
(4) “the Court’s evaluation of what level of services was necessary;”
and
(5) “the Court’s evaluation of … what rendered services were
unnecessary.”
(CR2:445).
Like with Finding of Fact No. 8, several of these damage elements are
generalized conclusions and unsupported by any detail or specification.
Specifically, Elements 1, 4 and 5 broadly reference the trial court’s “knowledge”
39
and “evaluation;” but none of these damage elements sets forth what the trial
court’s “knowledge” and “evaluation” actually is with respect to that element.
In that regard, Elements 4 and 5 each reference an “evaluation” by the trial
court about “what level of services was necessary” and “what rendered services
were unnecessary,” But, neither damage element includes the trial court’s actual
“determination” or “assessment” about the matters listed in each element.14
(CR2:445). That “determination” or “assessment” is also not included in the post-
remand record. (CR2; RR3).
Additionally, Elements 4 and 5 explicitly incorporate considerations of
necessity, which are not part of the applicable legal standard under the TCPA. TEX.
CIV. PRAC. & REM. CODE § 27.009(a)(1); Busteed, 2002 WL 31549428, at *3. As a
result, this Court must speculate about what the trial court’s “evaluation” is that is
referenced in Elements 4 and 5, which accompany Finding of Fact No. 9.
Accordingly, damage elements 1, 4, and 5 that accompany the broad-form
damage finding in Finding of Fact Number 9 are unsupported, generalized
conclusions and are legally insufficient. (CR2:445). See Hancock, 400 S.W.3d at
69; Coastal Transp. Co., 136 S.W.3d at 232.
Sullivan objected to the trial court that these damage elements are
conclusory, inadequate, and legally insufficient. (CR2:449–55). Sullivan also
14
Supra note 11.
40
requested the trial court to issue additional findings of fact that specifically identify
the basis for an award of attorneys’ fees as actual damages in Finding of Fact No.
9, but the trial court refused.15 (CR2:449-55). Sullivan further objected to the trial
court’s use of inapplicable elements in the legal standard. (CR2:449). The trial
court’s error in overruling Sullivan’s objection and refusing his request for
additional, amended, specific findings resulted in a broad-form damage finding
accompanied by five damage elements, three of which are legally insufficient.16
(CR2:445).
Just like with Finding of Fact No. 8, this error is presumed reversible under
Casteel and its progeny. See Thota, 366 S.W.3d at 680. It prevents this Court from
determining the extent to which the trial court’s award of $7,200 in attorneys’ fees
as actual damages in Finding of Fact 9 is based on an invalid/legally insufficient
element and prevents proper presentation of the case on appeal. See Harris County,
96 S.W.3d at 231, 233–34; Zaidi, 502 S.W.3d at 439–41.
15
See Zaidi, 502 S.W.3d at 440 (“The Turnaround parties requested additional findings of fact,
asking the trial court to identify the damages awarded to each of the Borrowers for each cause of
action, but the trial court did not do so. This issue therefore has been preserved for our
review.”).
16
Supra note 13.
41
IV. The district court erred in failing to award conditional appellate
attorney’s fees.
Sullivan offered evidence of a reasonable amount of attorney’s fees
conditioned on a successful appeal in this Court and, if necessary, a further
successful appeal in the Supreme Court of Texas. (CR2:68). The district court
abused its discretion in refusing to award them.
An award of reasonable attorney’s fees is mandatory for a successful movant
under the TCPA. TEX. CIV. PRAC. & REM. CODE § 27.009(a); Bocquet v. Herring,
972 S.W.2d 19, 21 (Tex. 1998); Sullivan, 472 S.W.3d at 680. When an award of
trial attorney’s fees is made mandatory by statute, an award of appellate attorney’s
fees is also mandatory. Ventling v. Johnson, 466 S.W.3d 143, 154 (Tex. 2015);
DaimlerChrysler Motors Co. v. Manuel, 362 S.W.3d 160, 198–99 (Tex. App.—
Fort Worth 2012, no pet.).
Abraham has argued that Sullivan is entitled to fees only for defending
against Abraham’s frivolous legal action, not to fees incurred in Sullivan’s
successfully appealing the erroneous judgment procured by Abraham. The Dallas
court of appeals rejected the argument Abraham makes in Cruz v. Van Sickle, 452
S.W.3d 503, 526–27 (Tex. App.—Dallas 2014, no pet.) in the context of the
TCPA. Sullivan’s argument would undermine the purpose of the TCPA, which is,
in part, to deter frivolous litigation and to provide a mechanism for prompt
42
dismissal of strategic lawsuits against public participation. TEX. CIV. PRAC. & REM.
CODE § 27.009.
In Ventling, the supreme court explicitly rejected the argument that a
prevailing party in the trial court was not entitled to appellate attorney’s fees as a
successful appellant.
Because Civil Practice and Remedies Code Chapter 38 directs courts to
interpret that chapter to promote its underlying purpose, a significant motivating
factor in the court’s analysis was the purpose of section 38.001: to encourage
parties to pay their just debts and to discourage vexatious and unnecessary
litigation. Ventling, 466 S.W.3d at 155; Gates v. City of Dallas, 704 S.W.2d 737,
740 (Tex. 1986). Interpreting Chapter 38 such that a prevailing party in the trial
court cannot obtain appellate attorney’s fees for a successful appeal of a trial
court’s error, said the supreme court, would defeat the purpose of the statute.
The same analysis applies to the TCPA. Like Chapter 38, the TCPA
mandates that it “be construed liberally to effectuate its purpose and intent fully.”
TEX. CIV. PRAC. & REM. CODE § 27.011(b). An award of reasonable attorney’s fees
is mandated by the TCPA. Id. § 27.009(a)(1). Strategic lawsuits against public
participation (SLAPP suits) chill public debate because defendants often incur
substantial legal fees in defending against frivolous suits. Laura Lee Prather, Five
Years of Anti-SLAPP in Texas 3 (2016). The purpose of the attorney’s fees
43
provision in the TCPA is to discourage parties from filing frivolous lawsuits
intended to inflict litigation expenses on an adversary in retaliation for engaging in
public discourse, and to encourage the prompt disposition of these frivolous
lawsuits. TEX. CIV. PRAC. & REM. CODE § 27.002; Hersh v. Tatum, ___ S.W.3d
____, 2017 WL 2839873, at *1 (Tex. 2017). It would defeat the purpose of the
TCPA to hold that Sullivan cannot obtain reasonable attorney’s fees for
successfully appealing the district court’s erroneous judgment.
As the Fifth Circuit has explained,
It is unbecoming . . . to hail the defendant into
court by means of false allegations and then to complain
when the defendant hires skillful, experienced and
expensive advocates to defend against those allegations.
Having wrongfully kicked the snow loose at the top,
[Abraham] must bear the consequences of the avalanche
at the bottom.
Schwartz v. Folloder, 767 F.2d 126, 133–34 (5th Cir. 1985). See also Deutsch v.
Henry, 2016 WL 7165993, at *23 (W.D. Tex. Dec. 7, 2016). Accordingly, the
district court’s refusal to award Sullivan conditional appellate fees for successfully
prosecuting this appeal must be reversed.
CONCLUSION AND PRAYER
For the foregoing reasons, as well as for the reasons specified in Sullivan’s
prior briefs in this Court and in the Supreme Court of Texas, Sullivan respectfully
prays that this Court reverse the trial court’s judgment and findings of fact and
44
conclusions of law and render judgment for Sullivan awarding him the amount of
reasonable attorney’s fees, costs, expenses, and the sanction that he proved in the
record. Sullivan alternatively requests that the Court reverse and remand this case
to the trial court for a proper determination of reasonable attorney’s fees, costs,
expenses, and the sanction as proven by Sullivan. Sullivan additionally prays for
all other and further relief, both at law and in equity, to which he may be justly
entitled.
Respectfully submitted,
AKERMAN LLP
/s/ N. Terry Adams, Jr.
James E. “Trey” Trainor, III N. Terry Adams, Jr.
State Bar No. 24042052 State Bar No. 00874010
trey.trainor@akerman.com terry.adams@akerman.com
AKERMAN LLP Joseph M. Nixon
700 Lavaca, Suite 1400 State Bar No. 15244800
Austin, Texas 78701 joe.nixon@akerman.com
Telephone: (512) 623-6700 Nicholas D. Stepp
Fax: (512) 623-6701 State Bar No. 24077701
nicholas.stepp@akerman.com
AKERMAN LLP
1300 Post Oak Blvd., Suite 2500
Houston, Texas 77056
Telephone: (713) 623-0887
Fax: (713) 960-1527
Counsel for Appellant Michael Quinn Sullivan
45
CERTIFICATE OF COMPLIANCE
In accord with Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned
attorney hereby certifies that the foregoing brief contains 10,477 words, excluding
those portions permitted by TEX. R. APP. P. 9.4(i)(1). The undersigned further
certifies that this brief has been prepared using a typeface of no smaller than 14-
point except for footnotes, which are no more than 12-point. See TEX. R. APP. P.
9.4(e).
/s/ Nicholas D. Stepp
Nicholas D. Stepp
CERTIFICATE OF SERVICE
I hereby certify that I have complied with the Electronic-Filing Rules for the
Supreme Court of Texas and that on this the 14th day of July, 2017, the foregoing
Brief on the Merits was e-filed with the Clerk of the Court and that a true and
correct copy of same has been e-served on all opposing counsel listed below in
accordance with the Texas Rules of Appellate Procedure as specified by the
Electronic-Filing Rules.
Mr. John H. Lovell
Ms. Courtney Lovell
LOVELL, LOVELL, ISERN & FARABOUGH, LLP
Eagle Centre Building
112 West 8th Avenue, Suite 1000
Amarillo, Texas 79101-2314
Counsel for Appellee
/s/ Nicholas D. Stepp
Nicholas D. Stepp
46
No. 07-17-00125-CV
__________________________________________________
IN THE SEVENTH COURT OF APPEALS
AT AMARILLO, TEXAS
______________________________________________
MICHAEL QUINN SULLIVAN
Appellant,
V.
SALEM ABRAHAM
Appellee.
______________________________________________
On Appeal from the 31st District Court, Hemphill County, Texas
(No. 6994)
After Remand from the Supreme Court of Texas
(No. 14-0987)
____________________________________________________________
APPENDIX
____________________________________________________________
Final Judgment, signed February 27, 2017 Tab A
Findings of Fact and Conclusions of Law, filed March 20, 2017 Tab B
Motion to Abate Appeal for Findings of Fact and Conclusions of
Tab C
Law
Order denying Motion to Abate, July 5, 2017 Tab D
Order Awarding Attorney Fees and Sanctions, McGibney v.
Retzlaff, No. 067-270669-14, 2016 WL 1703694 (67th Dist. Ct., Tab E
Tarrant Cnty., Apr. 14, 2016)
Appendix A
- - - - - - - - - - - - - - - - - - - -
CAUSE NO. 6994
SALEM ABRAHAM § 31sT DISTRICT COURT
§
Plaintiff, §
§
vs. § IN AND FOR
§
MICHAEL QUINN SULLIVAN §
§
§
Defendant. § HEMPHILL COUNTY, TEXAS
FINAL JUDGMENT
ON THIS DAY came on to be heard the Motion for Entry of Final Judgment by Defendant,
Michael Quinn Sullivan, and the Court, after considering the Motion, the pleadings, all of the
evidence before the Court, and the argument of counsel, and following the mandate ofthe Supreme
Court of Texas and Texas Civil Practice and Remedies Code § 27.009 et. seq., hereby finds that
Plaintiffs objections to Sullivan's attorney fee application are sustained and orders that Defendant,
Michael Quinn Sullivan ("Sullivan"), shall have and recover from Plaintiff, Salem Abraham
("Plaintiff'), as follows:
1. Court Costs in the amount of $1 ,621.60, plus post-judgment interest thereon at the
statutory rate of 5% per annum until paid;
2. Reasonable attorney's fees from the beginning of the case until remand by the
Supreme Court of Texas to this Court in the amount of $35,000.00, plus post-judgment interest
thereon at the statutory rate of 5% per annum until paid;
3. Reasonable attorney's fees after remand by the Supreme Court of Texas to this
Court in the amount of $7,200.00, plus post-judgment interest thereon at the statutory rate of 5%
per annum until paid;
{40934094; I}
439
4. Other expenses incurred by Sullivan that justice and equity require to be awarded
in the amount of $17,240.03, plus post-judgment interest thereon at the statutory rate of 5% per
annum until paid ; and
5. Sanctions against Abraham the Court determines sufficient to deter Abraham from
bringing similar actions in the amount of $15,000.00, plus post-judgment interest thereon at the
statutory rate of 5% per annum until paid.
This is a final, appealable judgment. All relief requested and not expressly granted is
DENIED.
Signed this ez2/ / day of February, 2017.
~ HON. STEVEN EMMERT
APPROVED as to form only and not as to substance or content:
Is/ Joseph M Nixon
Joseph M. Nixon
joe.nixon@akerman.com
Akerman LLP
1300 Post Oak Blvd. Suite 2300
Houston, Texas 77056
(713) 623-0887 telephone
APPROVED as to form only, and not as to substance or content:
Is/ John H. Lovell
John H. Lovell
john@lovell-law.net
Courtney D. Miller
courtney@lovell-law.net
LOVELL LOVELL lSERN & F ARABOUGH, LLP
112 West 8th Avenue, Suite 1000
Amarillo, Texas 79101
(806) 3 73-1515 telephone
{40934094; I}
440
Appendix B
CAUSE NO. 6994
SALEM ABRAHAM, § IN THE 31ST DISTRICT COUttfLED
§
11:o7
Plaintiff, §
MAR 2 0 2017
§
vs. § QSIC1$«%f"'XJUAT
§ IN AND FOR IEII'ttiLOOUNIY 1PAS
MICHAEL QUINN SULLIVAN, § ~.,-coc_
§
Defendant. § HEMPHILL COUNTY, TEXAS
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On June 29, 2016, the above captioned cause came on for an evidentiary hearing on the issue
of costs, reasonable attorney's fees, additional expenses, and sanctions. The Court provided Salem
Abraham additional time after the hearing to offer evidence upon submission, with Michael Quinn
Sullivan also having additional time to reply and offer evidence upon submission. Abraham responded
on July 11,2016, and Sullivan replied on July 21,2016. After considering the pleadings, the mandate
and opinion of the Texas Supreme Court, the evidence, and the arguments and authorities presented by
counsel, the Court, in response to a request from Defendant, makes it findings of fact and conclusions
oflaw as follows:
A. Findings of Fact
I. Any finding of fact constituting in whole or in part a conclusion oflaw shallbe deemed
a conclusion oflaw.
2. This suit was filed April9, 2013.
3. The underlying statements made by Daniel Greer and Agendawise, which are the subject
of Plaintiff's petition in this case, were completely false, without any factual basis, and were per se
defamatory to Salem Abraham.
F1NDINOS OF fACT AND CONCLUSIONS OF LAW Page 1
L:\1"1.1111\IM. TA\Atnlllra.s.l!waa..l!iZI!i! .l IN'~ndinp crf FKI ...:! O:zn::hll;igm af L.a.-..-pd.
443
4. With Salem Abraham's profession being a "hedge fund" manager, who is often
thoroughly investigated by prospective. investors or clients, the fake and defamatory statements of
Daniel Greer and Agendawise had the potential to be quite harmful to Salem Abraham and to his
business.
5. Salem Abraham brought this legal action out of a sincere and justifiable concern for his
reputation among his clients and investors, and among potential clients and investors.
6. This legal action was not brought by Abraham to deter or prevent Sullivan from
el(ercising constitutional rights, nor for any improper pUiposes. Abraham did not bring tbe legal action
to harass, to cause unnecessary delay, or to increase the cost oflitigation. Rather, tbe Court fmds that
Abraham brought this suit for the purposes of (I) exercising his constitutionally-protected right to
protect his reputation, and (2) to determine how and by whom the utterly false defamatory statements
about him originated, and were transmitted.
7. The Court further finds that the relationship of Michael Quinn Sullivan to AgendaWise
and Daniel Greer, and Michael Quinn Sullivan's prior publication about the Levelland meeting, were
such as would lead a reasonable person to suspect that Michael Quinn Sullivan may have been involved
in the transmission of false information regarding Abraham.
8. Based upon the Court's knowledge of attorney's fees, including the rates customarily
charged in the locality for similar legal services, the evidence presented on tbe fees customarily charged
in the locality for similar services, the Court's observation and evaluation of what amount of legal
services were provided by the attorneys for the parties, and this Court's evaluation of what level of
attorney's services were reasonable and necessary in this case, as well as this Court's evaluation of the
duplication oflegal services, and the legal services which this Court believes and finds were excessive,
unreasonable and unnecessary, the Court finds that reasonable and necessary attorneys' fees for the
f!NDINOS OF FACT AND CONCLUSIONS OF LAW Page2
.1.:111111111\DATA\A-.......m.Sallina.illl!i 1.10\f'~iadiap of Fld and CandJaWm uf~ -~
444
services of Defendant's attorneys, from the beginning of this case until remand by the Supreme Court
of Texas to this Court, is in the amount of$35,000.00.
9. Based upon the Court's knowledgeoffees customarily charged in the locality for similar
legal services, the evidence presented on the fees customarily charged in the locality for similar services,
plus evidence of the reasonable number of hours worked for similar work, and the Court's evaluation
ofwhat level of services was necessary, and what rendered services were unnecessary, the Court finds
that reasonable and necessary attorneys' fees for the services ofDefendant's attorneys, after remand by
the Supreme Court, is in the amount of$7,200,00.
I 0. Based upon the evidence submitted, and the Court's knowledge of what expenses are
normally incurred by attorneys and billed to fee-paying clients, Defendant incurred other expenses in
defending against the legal action that justice and equity require to be awarded to Defendant, in the
amount of$17,240.03.
II. BI!Sed upon the evidence submitted and the Court's evaluation of the merits of the claims
and defenses, and the motives and reasons for Abraham filing this suit, the Court determines sanctions
in the amount of $15,000.00 against Abraham is sufficient to deter Abraham from bringing similar
actions.
B. Conclusions of Law
12. Any conclusion oflaw constituting in whole or in part a fmding of fact shall be deemed
a finding of fact.
13. Abraham failed to establish by clear and specific evidence a prima facie case for each
essential element of a defamation claim.
FINDINGS DFFACI AND CONCLUSIONS OFlAW Page 3
L: ........\Dt\T.-.~Sioliliva.IWil.ICN'adiap\F'IIdiap 11ffta _. Col:ll:llilicml art..w.wpd
445
14. In addition to all other relief awarded to defendant in this case, Defendant shall recover
from Plaintiff his taxable costs of court.
SIGNED this .L£t::rMarch 2017.
<
HONORABLE STEVEN EMMERT
31" Judicial District Judge
FINDINOSOFFACf AND CONCLUSIONS OF lAW Page4
J-:\Palloii'JJATA~S.,....._6l61 ,I~N'illdiap ofPKI &lldCV!dulii::J:m ori...11w.~
446
Appendix C
ACCEPTED
07-17-00125-CV
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
6/15/2017 9:37:06 AM
Vivian Long, Clerk
No. 07-17-00125-CV
_______________________________________
IN THE SEVENTH COURT OF APPEALS
AT AMARILLO, TEXAS
_______________________________________
MICHAEL QUINN SULLIVAN,
Appellant,
v.
SALEM ABRAHAM,
Appellee.
_____________________________________________________
On Appeal from the 31st District Court of Hemphill County, Texas
(No. 6994)
After Remand from the Supreme Court of Texas
(No. 14-0987)
MOTION TO ABATE APPEAL
FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW
COMES NOW Appellant Michael Quinn Sullivan and respectfully asks this
Court to abate this appeal and direct the trial court, the 31st District Court of
Hemphill County, Texas, to enter Findings of Fact and Conclusions of Law in
connection with its final judgment of February 28, 2017. (CR2:439)1
1
This is an appeal after remand. The Clerk’s Record for this appeal is in two volumes, one
containing items filed prior to the first appeal (“Volume 1”), and the other containing items filed
on remand (“Volume 2”). Volume 1, containing 790 pages, was filed in in the first appeal (No.
07-13-00396-CV) by the Hemphill County District Clerk on September 25, 2013, and in this
cause by order of the Court on April 25, 2017. Volume 2 contains 485 pages, and was filed in
this cause by the Hemphill County District Clerk on May 25, 2017. For citations to the Clerk’s
Record, Appellant uses the familiar citation format (CR[volume]:[page])
SUMMARY
This is an appeal from an award of attorney’s fees, costs, expenses, and a
sanction—all in favor of Michael Quinn Sullivan and against Salem Abraham.
Michael Quinn Sullivan proved that he incurred $296,805 in attorney’s fees from
the inception of the case until the supreme court remanded the case to the district
court. The district court awarded Sullivan $35,000 in attorney’s fees for work prior
to remand.
This result is highly unusual. In offering his attorney’s fees as a yardstick by
which to measure reasonableness, Salem Abraham admitted that he spent nearly 4
times the amount awarded to Sullivan by the district court. Considering the entirety
of the evidence, Abraham offered a basis to challenge only about 10% of the fees
Sullivan proved were reasonable and necessary. The district court’s judgment,
(CR2:439–40), represents a 73% downward departure from the lowest attorney’s
fees figure offered by any party in this case.
Exercising his rights under Texas law, Sullivan timely requested findings of
fact and conclusions of law. (CR2:441) The purpose of findings and conclusions is
so that an appellant can understand the basis for a trial court’s decision and not
have to guess at the reasons. The district court did not perform its ministerial duty
because the district court’s findings and conclusions shed no light on the reasons
for its decision. They leave Sullivan in the position of having to guess, which
2
eviscerates Sullivan’s rights to the findings and conclusions and defeats the
purpose of the Rules.
Because Sullivan has a right under Texas law to obtain meaningful findings
of fact and conclusions of law regarding the highly unusual judgment in this case,
TEX. R. CIV. P. 297, Sullivan asks this Court to abate the appeal, refer this case to
the district court, and direct the district court to enter proper findings of fact and
conclusions of law.2 This request is not made for delay, but only so that justice
may be done.
ARGUMENT
1. Background
This appeal follows an earlier appeal from a judgment signed by the 31st
District Court on August 16, 2013. (CR1:768–69) That judgment was appealed to
this Court and then to the Supreme Court of Texas. (CR1:772; CR2:4; CR2:16;
CR2:18) This Court held that it was error for the district court to fail to award
sanctions, which are mandatory under the Texas Citizens Participation Act.
Sullivan v. Abraham, 472 S.W.3d 677, 683 (Tex. App.—Amarillo 2014), rev’d in
part, 488 S.W.3d 294 (Tex. 2016).
The Supreme Court of Texas further held that it was error for the district
court to import considerations of justice and equity into the determination of
2
Sullivan timely objected below and requested additional and amended findings of fact and
conclusions of law. (CR2:447)
3
reasonable attorney’s fees. Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016).
The case was thereafter remanded to the district court for entry of judgment
awarding Michael Quinn Sullivan a sanction against Salem Abraham as well as
costs, reasonable attorney’s fees, and other expenses as justice and equity require.
Id. at 300.
2. The “findings of fact and conclusions of law” filed by the district court
do not satisfy the district court’s ministerial duty to enter proper
findings and conclusions.
The primary purpose for findings of fact and is for a party to ascertain the
true basis for the trial court’s decision. Rush v. Barrios, 56 S.W.3d 88, 96 (Tex.
App.—Houston [14th Dist.] 2001, pet. denied). A mere conclusion is inadequate.
Thompson v. Railroad Comm’n, 240 S.W.2d 759, 761–62 (Tex. 1951).
The Findings of Fact and Conclusions of Law leave Michael Quinn Sullivan
and this Court in the position of having to guess—in the same position he would be
in if there were no findings and conclusions. When requested, trial courts must
make findings and conclusions adequate to provide an appellate court a basis upon
which to review the trial court’s application of the law to the facts. State v. Saenz,
411 S.W.3d 488, 495 (Tex. Crim. App. 2013). Error with regard to Findings of
Fact is harmful if it prevents an appellant from properly presenting a case to the
appellate court. TEX. R. APP. P. 44.1(a)(2); Tenery v. Tenery, 932 S.W.2d 29, 30
(Tex. 1996).
4
In this case, the trial court’s findings of fact and conclusions of law force
Sullivan to guess at the reasons the district court reached its decision. For example,
the text of the judgment is:
[A]fter considering the Motion, the pleadings, all of the
evidence before the Court, and the argument of counsel,
and following the mandate of the Supreme Court of
Texas and Texas Civil Practice and Remedies Code
§ 27.009 et seq., hereby finds that . . . Michael Quinn
Sullivan (“Sullivan”), shall have and recover from
Plaintiff, Salem Abraham (“Plaintiff”) as follows: . . .
Reasonable attorney’s fees from the beginning of the
case until remand by the Supreme Court of Texas to this
Court in the amount of $35,000, plus post-judgment
interest thereon at the statutory rate of 5% per annum
until paid.
(CR2:439 ¶2) The trial court’s explanation in its findings sheds no
light on why the court reached this decision. It says merely:
Based upon the Court’s knowledge of attorney’s fees,
including the rates customarily charged in the locality for
similar legal services, the evidence presented on the fees
customarily charged in the locality for similar services,
the Court’s observation and evaluation of what amount of
legal services were provided by the attorneys for the
parties, and this Court’s evaluation of what level of
attorney’s services were reasonable and necessary in this
case, as well as this Court’s evaluation of the duplication
of legal services, and the legal services which this Court
believes and finds were excessive, unreasonable and
unnecessary, the Court finds that reasonable and
necessary attorney’s fees for the services of Defendant’s
attorneys, from the beginning of this case until remand
by the Supreme Court of Texas, is in the amount of
$35,000.00.
5
(CR2:444–45 ¶8) The district courts findings are similarly unhelpful regarding
post-remand attorney’s fees. The final judgment says:
[A]fter considering the Motion, the pleadings, all of the
evidence before the Court, and the argument of counsel,
and following the mandate of the Supreme Court of
Texas and Texas Civil Practice and Remedies Code
§ 27.009 et seq., hereby finds that . . . Michael Quinn
Sullivan (“Sullivan”), shall have and recover from
Plaintiff, Salem Abraham (“Plaintiff”) as follows: . . .
Reasonable attorney’s fees from the beginning of the
case until remand by the Supreme Court of Texas to this
Court in the amount of $35,000, plus post-judgment
interest thereon at the statutory rate of 5% per annum
until paid.
(CR2:439 ¶3) The court’s explanation in its findings sheds no light on why the
court reached this decision. It says merely:
Based upon the Court’s knowledge of fees customarily
charged in the locality for similar legal services, the
evidence presented on the fees customarily charged in the
locality for similar legal services, the evidence presented
on the fees customarily charged in the locality for similar
services, plus evidence of the reasonable number of hours
worked for similar work, and the Court’s evaluation of
what level of services was necessary, and what rendered
services were unnecessary, the Court finds that
reasonable and necessary attorneys’ fees for the services
of Defendant’s attorneys, after remand by the Supreme
Court, is in the amount of $7,200.00.
(CR2:445 ¶9) When a trial court makes findings that are so incomplete that an
appellant is forced to guess and an appellate court is unable to make a legal
6
determination, abatement for adequate findings of fact and conclusions of law is
required. Saenz, 411 S.W.3d at 495.
3. Abatement at this stage is proper and necessary.
Abatement at this stage of the appeal is the proper vehicle for obtaining the
required findings and conclusions. Saenz, 411 S.W.3d at 495; Order of Abatement,
Chevron Phillips Chem. Co. LP v. Kingwood Crossroads LP, No. 09-14-00316-CV
(Sep. 18, 2014), attached as Appendix A. If this Court abates the appeal at this
early stage, the parties will be able to brief the issues of attorney’s fees and
sanctions efficiently and this Court’s ability to review the reasons for the trial
court’s judgment will be enhanced, all with little delay and minimal wasted effort.
4. Abatement for findings of fact will help explain the basis for the highly
unusual judgment.
The unusual nature of the judgment is best highlighted by three
considerations. First, the attorney’s fees provisions in the Texas Citizens
Participation Act are entitled “Damages and Costs.” TEX. CIV. PRAC. & REM. CODE
§ 27.009. The purpose of this portion of the Texas Citizens Participation Act is to
ensure that parties who are targeted by frivolous strategic lawsuits against public
participation are made whole. Indeed, for frivolous lawsuits intended to silence
public participation and speech on issues of public concern, forcing an opponent to
incur such large sums of attorney’s fees is the intended consequence: The rap is the
ride, because the substantive claims lack merit.
7
It is unbecoming to hail a defendant into court by means of false allegations
and then complaint when the defendant hires skillful, experienced and expensive
advocates to defend against those allegations. Having wrongfully kicked the snow
loose at the top, Salem Abraham must bear the consequences of the avalanche at
the bottom. Schwartz v. Folloder, 767 F.2d 125, 133–34 (5th Cir. 1985).
Fee awards in similar cases have been very close to the amount of fees
Sullivan seeks. For example, a Tarrant County district court awarded Rauhauser
$300,383.94 plus a $150,000.00 sanction. McGibney v. Retzlaff, No. 67-270669-
14, in the 67th District Court, Tarrant County, Texas (Apr. 14, 2016).
Second, the lowest amount of attorney’s fees incurred by either party
exceeds $130,000. The district court here, without explanation or argument,
awarded barely more than 25% of that amount. The district court’s fee award to
Sullivan represents a mere 12% of his attorneys fees. Nor are Sullivan’s fees in any
way unusual or unexpected. Rauhauser’s fees in a similar case amounted to
approximately $300,000 too. Id.Finally, the discrepancy in the hours spent by the respective sides’ attorneys
are, apples-to-apples, quite similar. The table below, based on evidence that was
before the district court when it ruled, summarizes an apples-to-apples comparison
of the time spent on this case by the respective sides.3
3
(CR2:36–60; CR2:82–83; CR2:406–07)
8
Phase Plaintiff Abraham Defendant Sullivan
District Court 177.2 hours 140.9 hours
Seventh Court of Appeals 127.85 hours 131.2 hours
Supreme Court of Texas 246.2 hours 250.72 hours
Total, apples-to-apples 551.25 hours 523.82 hours
The only hours excluded from this apples-to-apples comparison are the
hours incurred by Sullivan’s counsel in preparing the reply brief in this court, the
reply in support of Sullivan’s petition for review in the supreme court, and
Sullivan’s reply brief on the merits in the supreme court. In total, Sullivan’s
counsel spent 184.8 hours on these three briefs. (CR2:36–60) As shown to the
district court (CR2:406–07) and summarized above, the discrepancy in the
numbers of hours spent on this case by the respective parties’ counsel is entirely
attributable to the procedural posture of this case. Sullivan was the appellant in this
court and the petitioner in the supreme court. Appellants reasonably and routinely
file reply briefs, and Petitioners in the supreme court reasonably and routinely file
both a Reply in Support of their Petition for Review as well as a Reply Brief on the
Merits. Salem Abraham himself has followed this practice. Reply Brief of Salem
Abraham, Abraham v. Greer, No. 07-12-00494-CV (Apr. 5, 2013).
9
These three considerations, separately and together, suggest that the district
court’s judgment is highly unusual in light of the applicable law and the facts
before that court when it ruled.
5. Abatement for findings of fact will permit the district court to analyze
Texas law and identify how the court applied the facts to the law.
Pursuant to TEX. R. CIV. P. 296, Michael Quinn Sullivan filed a request for
findings of fact and conclusions of law on March 7, 2017. (CR2:441) When
requested, Findings of Fact and Conclusions of law are required by Texas law in
cases, like this one, where the trial court decides attorneys’ fees without a jury.
Heafner & Assocs. v. Koecher, 851 S.W.2d 309, 313 (Tex. App.—Houston [1st
Dist.] 1992, no writ). The primary purpose for findings of fact and is for a party to
ascertain the true basis for the trial court’s decision. Rush v. Barrios, 56 S.W.3d
88, 96 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). Therefore, the trial
court was required to file adequate findings of fact and conclusions of law
explaining the true basis for its decision on or before March 27, 2017, twenty days
after Sullivan’s timely request. TEX. R. CIV. P. 297.
The district court was required to award Sullivan reasonable attorney’s
fees—that is, a fee that is not excessive or extreme, but moderate or fair. Sullivan
v. Abraham, 488 S.W.3d at 299. The district court was therefore required to
explain the basis of its attorney’s fee award in light of the time and labor involved,
the novelty and difficulty involved, the skill required to perform the legal services
10
properly, the exclusion from other employment by the attorneys because they
accepted this case, the customary fee, time limitations, the experience and
reputation of the counsel, awards in similar cases, the amount in controversy, the
nature and length of the relationship between attorney and counsel, and the results
obtained. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818
(Tex. 1997).
In the event the district court found a particular rate as unreasonable, in
order to explain its decision, the court would need to say that rate was
unreasonable as well as the basis on which the court concluded that a different rate
was reasonable—specifying that rate, too. The only way for the respective parties
to know what work the district court may have considered unnecessary,
unreasonable, or duplicative, it was the district court’s ministerial duty to specify
what work the court considered unnecessary or duplicative.
Sullivan provided to the district court every single time entry for every
single timekeeper from the beginning of this case. But nowhere in the district
court’s findings and conclusions did it identify a single duplicative time entry.
Nowhere in the district court’s findings and conclusions did it specify what
services were excessive, unreasonable, or unnecessary. For that matter, Abraham’s
own evidence and argument never identified a single time entry wherein the
services offered were duplicative, unreasonable, or unnecessary.
11
Nowhere in the district court’s “findings and conclusions” did it identify
what a reasonable hourly rate is for legal services of the kind provided in this case.
Nowhere in the district court’s “findings and conclusions” did that court identify
the number of hours that would have been reasonable to expend in defense of a
First Amendment case seeking millions of dollars in damages, achieve success in
part on appeal to an intermediate court, and then achieve success on the remaining
legal issues in the court of last resort in Texas.4
CONCLUSION AND PRAYER
Under Texas law, appellants cannot be forced to guess at the reasons
motivating a trial court’s judgment. However, that is precisely the scenario created
by the findings and conclusions entered in this case. They shed no light on why the
trial court entered judgment by departing downward 73% from the lowest figure
offered by any party for pre-remand attorney’s fees. In fact, the trial court’s
findings and conclusions recite the judgment nearly verbatim.
The controlling issue is whether, under the circumstances of the case, the
appellant is required to guess at the reasons for the trial court’s decision. Elliott v.
Kraft Foods N. Am., Inc., 118 S.W.3d 50, 54–55 (Tex. App.—Houston [14th Dist.]
2003, no pet.). Based on the factors identified above and in light of the highly
unusual decision, Sullivan is left to guess and this court could not meaningfully
4
Sullivan timely objected and requested additional and amended findings of fact and conclusions
of law. (CR2:447)
12
review the district court’s findings and conclusions. Sullivan is left as though no
Findings of Fact or Conclusions of Law were ever filed and the trial court simply
refused to fulfill its ministerial duty to enter findings and conclusions explaining
the true basis for its decision.5 Brooks v. Housing Auth. of El Paso, 926 S.W.2d
316, 319 (Tex. App.—El Paso 1996, no writ).
Therefore, Michael Quinn Sullivan respectfully asks this Court to:
1. Abate this appeal for 40 days;
2. Direct the district court to:
(a) file proper findings of fact and conclusions of law within 20
days of an order by this Court granting this motion, pursuant to TEX.
R. CIV. P. 297;
(b) Allow the parties 10 days after the filing of Findings of Fact
and Conclusions of Law to request additional and amended Findings
of Fact and Conclusions of Law, pursuant to TEX. R. CIV. P. 298;
(c) File any additional or amended findings and conclusions
within 10 days after such request is filed, pursuant to TEX. R. CIV. P.
298;
3. Suspend all appellate deadlines while the case is abated; and,
4. Grant any other relief necessary to facilitate the preparation and filing of
adequate Findings of Fact and Conclusions of Law.
5
This motion to abate focuses for illustrative purposes on the award of $35,000 in attorney’s fees
to Sullivan for defending this case in the district court and then successfully prosecuting an
appeal in this court and for successfully prosecuting a further appeal to the Supreme of Texas.
Sullivan provides this focus for brevity and for illustrative purposes only, and without waiver of
his other arguments. Sullivan is also entitled to have the district court explain why the court
awarded only $7,200 in attorney’s fees on remand, and only a $15,000 sanction in a case filed
after Plaintiff Abraham knew he could not recover damages from Michael Quinn Sullivan, but
sought tens of millions of dollars anyway.
13
Respectfully submitted,
AKERMAN LLP
By:_/s/ Nicholas D. Stepp_________
N. Terry Adams, Jr.
State Bar No. 00874010
terry.adams@akerman.com
Nicholas D. Stepp
State Bar No. 24077701
nicholas.stepp@akerman.com
Joseph M. Nixon
State Bar No. 15244800
joe.nixon@akerman.com
James E. “Trey” Trainor, III
State Bar No. 24042052
trey.trainor@akerman.com
1300 Post Oak Boulevard, Suite 2500
Houston, TX 77056
(713) 623-0887 (Telephone)
(713) 960-1527 (Fax)
Attorneys for Appellant Michael Quinn
Sullivan
14
CERTIFICATE OF CONFERENCE
I hereby certify that I have conferred with Ms. Courtney Miller, counsel for
Appellee Salem Abraham, regarding this motion. Ms. Miller indicated that
Appellee is opposed to the relief requested in this motion.
/s/ Nicholas D. Stepp
Nicholas D. Stepp
CERTIFICATE OF SERVICE
I hereby certify that on June 15, 2017, the foregoing document was served
on all counsel of record via e-filing, as follows:
John H. Lovell
john@lovell-law.net
Courtney D. Miller
courtney@lovell-law.net
LOVELL, LOVELL, ISERN & FARABOUGH, LLP
112 West 8th Avenue, Suite 1000
Amarillo, Texas 79101
(806) 373-1515 (Telephone)
/s/ Nicholas D. Stepp
Nicholas D. Stepp
15
Appendix A
In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00316-CV
____________________
CHEVRON PHILLIPS CHEMICAL COMPANY LP, Appellant
V.
KINGWOOD CROSSROADS, L.P., Appellee
_______________________________________________________ ______________
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Cause No. 14-04-04123 CV
________________________________________________________ _____________
ORDER
Chevron Phillips Chemical Company LP (“CP Chem”) filed a motion to
abate the appeal and to remand the case to the trial court for entry of findings of
fact and conclusions of law. In an earlier appeal from the underlying trial, the
appellate court reversed part of the judgment on the jury’s verdict and remanded
the case to the trial court “for determination of the amount of attorneys’ fees
Kingwood CrossRoads[, L.P.] is entitled to recover for its defense of CP Chem’s
breach-of-contract claim.” See Chevron Phillips Chem. Co. LP v. Kingwood
1
CrossRoads, L.P., 346 S.W.3d 37, 78 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied). The Court of Appeals instructed that the case was remanded “for
Kingwood CrossRoads to segregate these fees or demonstrate segregation is not
required and for the trial court to determine the amount of fees recoverable for
defense of CP Chem’s contract claim.” Id. at 70. On remand, the trial court
determined that the amount of attorneys’ fees recoverable by Kingwood
Crossroads, L.P. (“KCR”) for its defense of CP Chem’s contract claim is
$2,648,101.50 plus post-judgment interest and additional sums in the event of
further appeals. The trial court denied CP Chem’s request for findings of fact and
conclusions of law. In its response filed in opposition to the appellant’s motion to
abate, KCR argues that CP Chem is not entitled to findings of fact and conclusions
of law because the proceeding on remand was not evidentiary in nature.
We abate the appeal and remand the case to the trial court for entry of
findings of fact and conclusions of law. See Tex. R. Civ. P. 298. If the trial court
resolved all issues as questions of law, without deciding any facts, it shall so state
in its conclusions of law. The trial court shall allow the parties ten days after the
trial court signs its findings of fact and conclusions of law to request additional
findings and conclusions. See Tex. R. Civ. P. 298. The appeal is abated and all
appellate timetables are suspended while the case is before the trial court. A
2
supplemental record, including any findings of fact made by the trial court and the
trial court’s conclusions of law, any additional findings and conclusions requested
by the parties, and any additional or amended findings and conclusions made by
the trial court, shall be filed with the Court of Appeals by October 28, 2014. The
appeal will be reinstated without further order of this Court when the supplemental
clerk’s record is filed. The brief of the appellant shall be due thirty days after the
supplemental clerk’s record is filed with the Court of Appeals.
ORDER ENTERED September 18, 2014.
PER CURIAM
Before McKeithen, C.J., Kreger and Horton, JJ.
3
Appendix D
FILE COPY
BRIAN QUINN
Chief Justice
Court of Appeals VIVIAN LONG
Clerk
JAMES T. CAMPBELL
Justice
Seventh District of Texas MAILING ADDRESS:
PATRICK A. PIRTLE
Justice
Potter County Courts Building P. O. Box 9540
79105-9540
501 S. Fillmore, Suite 2-A
Amarillo, Texas 79101-2449 (806) 342-2650
www.txcourts.gov/7thcoa.aspx
July 5, 2017
James E. "Trey" Trainor III Nicholas D. Stepp
AKERMAN LLP N. Terry Adams Jr.
700 Lavaca Street, Suite 1400 Joseph M. Nixon
Austin, TX 78701 AKERMAN LLP
* DELIVERED VIA E-MAIL * 1300 Post Oak Boulevard, Suite 2500
Houston, TX 77056
John H. Lovell * DELIVERED VIA E-MAIL *
Courtney D. Miller
LOVELL, LOVELL, ISERN
& FARABOUGH, L.L.P.
Eagle Centre Building
112 West 8th Avenue, Suite 1000
Amarillo, TX 79101
* DELIVERED VIA E-MAIL *
RE: Case Number: 07-17-00125-CV; Trial Court Case Number: 6994
Style: Michael Quinn Sullivan v. Salem Abraham
Dear Counsel:
By Order of the Court, the Motion to Abate Appeal for Findings of Facts and
Conclusions of Law is this day denied.
Very truly yours,
Vivian Long
VIVIAN LONG, CLERK
Appendix E
McGibney v. Retzlaff, 2016 WL 1703694 (2016)
2016 WL 1703694 (Tex.Dist.) (Trial Order)
District Court of Texas.
67th Judicial District
Tarrant County
James MCGIBNEY, et al,
v.
Thomas RETZLAFF, et al.
No. 067-270669-14.
April 14, 2016.
Order Awarding Attorney Fees and Sanctions
*1 After considering the decision in Rauhauser v. McGibney, 2014 Tex. App. LEXIS 13290 (Tex. App.—Fort Worth
2014, no pet.) (remanding this case for award of attorney's fees and sanctions), defendant Neal Rauhauser's motion
to award attorney's fees and sanctions pursuant to TEX. CIV. PRAC. & REM. CODE § 27.001, et seq., Rauhauser's
“Notice of Plaintiffs' New Criminal Aggravating Misconduct and Request for Nonmonetary Sanctions,” the original
and supplemental affidavits for attorney's fees of Rauhauser attorney Jeffrey L. Dorrell and fee statements appended
thereto, the “liberal construction” directive to Texas courts in TEX. Civ. PRAC. & REM. CODE § 27.011(b), plaintiffs'
response to Rauhauser's motion, the pleadings, and other affidavits and evidence on file, the Court finds:
(i) Plaintiffs' brought this suit against Rauhauser willfully and maliciously to injure Rauhauser by deterring Rauhauser
from exercising his constitutional rights—specifically, to truthfully criticize plaintiffs;
(ii) Plaintiffs brought this suit against Rauhauser with objective substantial certainty that the suit would inflict litigation
costs on Rauhauser;
(iii) Plaintiffs filed multiple lawsuits in two states at substantially the same time making substantially the same allegations;
(iv) Plaintiffs brought their suits against Rauhauser in conscious disregard of plaintiffs' duties or of Rauhauser's rights
and without just cause or excuse;
(v) Plaintiffs' filing of multiple SLAPP suits in two states at substantially the same time making substantially the same
allegations manifests plaintiffs' intent to continue using baseless suits to retaliate against, punish, and deter plaintiffs'
enemies, and necessitates a significant deterrent sanction;
(vi) Plaintiffs engaged in aggravating misconduct by willfully and intentionally harassing—and using confederates to
willfully and intentionally harass—both Rauhauser and Rauhauser's attorney, the objective of which was to punish the
exercise of Rauhauser's constitutional rights in the past, deter the exercise of Rauhausr's constitutional rights in the
future, and impair Rauhauser's ability to retain legal counsel in defense of plaintiffs' baseless claims; and
(vii) Plaintiffs' aggressive filing of multiple lawsuits and aggravating misconduct caused Rauhauser to incur $300,383.84
in attorney's fees to defend through trial and appeal.
As to Rauhauser's requested attorney's fees, the Court finds that affidavit evidence of Rauhauser's attorney's fees
submitted complies with TEX. CIV. PRAC. & REM. CODE § 18.001(c) and was not controverted pursuant to §
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McGibney v. Retzlaff, 2016 WL 1703694 (2016)
18.001(e). Accordingly, the Court admits into evidence for purposes of this order the original and supplemental affidavits
of attorney Jeffrey L. Dorrell and finds the amounts of attorney's fees stated therein to be reasonable in accordance with
TEX. Civ. PRAC. & REM. CODE § 18.001(b). The Court has considered the factors set forth in TEX. DISCIPLINARY
R. PROF. CONDUCT 1.04, STATE BAR RULES, Art. 10 § 9, Rule 1.04; see Arthur Andersen & Co. v. Perry Equip.
Corp., 945 S.W.2d 812, 818 (Tex. 1997). As a result, the Court makes the following specific findings as to each:
(i) The time and labor required.
*2 The time spent by each attorney or staff member rendering services to Rauhauser on each specific task was
contemporaneously logged and quantified to the nearest one-tenth of an hour, and totaled over 600 hours as of September
6, 2015, for trial, appeal, and remand.
(ii) The novelty and difficulty of the questions involved.
The TCPA is a relatively new statute enacted on June 17, 2011. Many issues have arisen in Texas appellate courts
regarding interpretation and application of its provisions. These include the constitutionality of the TCPA itself, whether
a plaintiff's nonsuit can defeat application of the TCPA, whether the TCPA's provision for awarding attorney's fees is
mandatory, whether the TCPA's provision for awarding sanctions “sufficient to deter the filing of similar actions” is
mandatory, whether review of a trial court's failure to rule on the motion is by interlocutory appeal or petition for writ
of mandamus, whether the TCPA applies to “non-public” speech, and what constitutes a “matter of public concern,”
and whether an appellate court can reverse and render judgment on attorney's fees and sanctions or must remand to the
trial court for further proceedings. Several of these were presented in the case at bar, including, without limitation:
(A) Plaintiffs argued both in this Court and on appeal that they were immunized from the TCPA's remedies because
Rauhauser chose to appear and defend their defamation SLAPP suit without ever having been served. This was an
issue on which no appellate court had spoken in the context of the TCPA at the time plaintiffs raised it. The issue
required extensive research and briefing in order for Rauhauser to prevail over plaintiffs' argument in the court of appeals.
Rauhauser v. McGibney is now extensively cited in law review articles and practice manuals on this point.
(B) Plaintiffs argued both in this Court and on appeal that they were immunized from the TCPA's remedies because
plaintiffs nonsuited their claims approximately 5 hours after Rauhauser filed his TCPA motion to dismiss. This was
also an issue on which no appellate court had spoken in the context of the TCPA at the time plaintiffs raised it. The
issue required extensive research and briefing in order for Rauhauser to prevail over plaintiffs' argument in the court of
appeals. Rauhauser v. McGibney is now extensively cited in law review articles and practice manuals on this point, too.
(C) It was necessary for Rauhauser to show that plaintiff McGibney was a “public figure” in order for the TCPA to apply
to the defamation claims made in the case at bar. This issue required extensive research into James McGibney's personal
background, prior statements, and litigation. This research ultimately resulted in discovery of extensive evidence of
McGibney's many media appearances, and even the affidavit of a McGibney expert filed in a Nevada lawsuit admitting
that McGibney was a public figure.
As a result, the novelty and difficult of the questions presented in the case at bar justifies both the more-than-600 hours
expended in trial, appeal, and on remand, and the hourly rates charged.
(iii) The skill requisite to perform the service properly.
The area of free speech, defamation claims, and the TCPA is highly specialized and complex. After the U.S. Supreme
Court began to “constitutionalize” the tort of defamation with New York Times v. Sullivan in 1964, the elements to be
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McGibney v. Retzlaff, 2016 WL 1703694 (2016)
proved and which party has the burden of proof took on a complexity not seen in any other tort practice. The enactment
of the TCPA in 2011 added a new layer of complexity, magnified by the fact that new appellate opinions changing
or clarifying the interpretation of the statute are released on an almost weekly basis. These are not topics or issues
on which “canned” briefing is available or on which the law is well-settled. Each issue requires independent research
and meticulous briefing. This practice area requires an extremely high degree of skill to perform services properly. The
attorneys performing services for Rauhauser possessed the high degree of skill required.
(iv) The likelihood, if apparent to the client, that acceptance of
the representation will preclude other employment by the lawyer.
*3 The over-600 hours of time expended by attorneys and staff of Hanszen Laporte over the 20 months in which
that firm represented Rauhauser— through trial, then through an appeal (including oral argument), and on remand for
attorney's fees and sanctions—precluded employment on other cases. Most of this time was been expended by attorney
Jeffrey L. Dorrell, and represents approximately 25% of all time expended by that attorney on all legal matters during
the relevant time period. Hanszen Laporte has 11 attorneys and a steady supply of paying clients on whose cases or
matters Dorrell could have worked if he had not chosen to render services to Rauhauser. This is proven by the fact that
Hanszen Laporte's revenues have grown by 178% during the three years immediately preceding the date of this affidavit,
ranking it 50 th out of all companies in Houston in revenue growth (the “Houston Fast 100”) and 28 th out of all Houston
companies owned or managed by graduates of the University of Houston (the “Cougar 100”).
(v) The fee customarily charged in the locality for similar legal services.
In cases of defamation, First Amendment, and TCPA motions, there is no “locality” in the sense that attorneys in one
“locality” might charge a higher price or hourly rate to draft a will for a client than attorneys in another “locality.” The
practice is so complex and specialized that only a small number of Texas attorneys are qualified to perform services for
clients. Those highly-qualified attorneys travel to where a case is pending. Here, the “locality” is more accurately seen
as the entire state of Texas. The hourly rate of $550.00 is comparable to that of the small number of similarly-qualified
attorneys in this field practicing in Texas.
(vi) The amount involved and the results obtained.
Plaintiffs sued Rauhauser for $1,000,000.00 in federal and state courts of two different states, including the case at bar.
The Court takes judicial notice that, as a direct result of the efforts and highly competent representation of Hanszen
Laporte, all claims against Rauhauser in all suits were ultimately disposed in his favor. Considerations of the amount in
controversy and results obtained weigh heavily in favor of the Court's finding that the fee charged to Rauhauser in the
case at bar was reasonable and that justice and equity require it to be awarded to Rauhauser.
(vii) Time limitations imposed by the client or by the circumstances.
The “circumstances” of the TCPA impose several accelerated deadlines, both in the trial and appellate phases of litigation
practice. These inflexible deadlines must be recognized and complied with, and take priority over more common deadlines
in normal litigation. These deadlines thus require special efforts that necessarily increase the amount of attorney's
fees that can be said to be “reasonable.” Other circumstances include plaintiffs' aggressive abuse and harassment of
Rauhauser's defense attorney—designed to deprive Rauhauser of the benefit of legal representation.
(viii) The nature and length of the professional relationship with the client.
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McGibney v. Retzlaff, 2016 WL 1703694 (2016)
Neither attorney Jeffrey L. Dorrell nor any member of Hanszen Laporte, LLP, or its staff has any prior professional
relationship with defendant Neal Rauhauser. After 19 months of representation, attorney Dorrell has never met
Rauhauser, who does not reside in Texas. After plaintiffs sued Rauhauser, Rauhauser's online research of Dorrell's
past SLAPP-suit appellate victories led him to request Dorrell's representation. The representation was an arm's-length
transaction, with no attendant considerations to call into question the reasonableness of the hourly rates charged or the
number of hours expended. This was not “pro bono” representation of a past or existing client as a courtesy for past
business.
(ix) The experience, reputation, and ability of the lawyer or lawyers performing the services.
The experience, reputations, and abilities of the lawyers performing the services for Rauhauser were of the highest caliber
and were readily apparent to the Court at all phases of the litigation.
(x) Whether the fee is fixed or contingent on results obtained or
uncertainty of collection before legal services have been rendered.
*4 The fee negotiated in the engagement letter signed by Neal Rauhauser called for payment of an initial retainer of
$1,500.00, which Rauhauser paid, and for future billings at a rate of $550.00 per hour for Dorrell's services. Hanszen
Laporte, LLP, sent Rauhauser regular monthly bills showing services provided and amounts incurrerd. Rauhauser is
contractually liable to pay these amounts. The firm of Hanszen Laporte advanced expenses on Rauhauser's behalf
and carried a receivable of over $300,000.00 with a significant risk that no payment would ever be collected. This was
anticipated at the time the representation was commenced (although not to the extent it ultimately reached), and the
firm's usual hourly rates for noncontingent fee cases were adjusted upward by approximately 50% to reflect this risk.
These facts, too, weigh heavily in favor of the Court's finding that the fee charged in the case at bar was reasonable, and
that the interests of justice and equity require that it be awarded to Rauhauser from plaintiffs in full measure.
Therefore, the Court GRANTS Rauhauser's motion and orders that plaintiffs James McGibney and ViaView, Inc., shall,
jointly and severally, pay to defendant Neal Rauhauser the following amounts:
(i) Total reasonable attorney's fees, litigation expenses, and court costs for the trial and first appeal of $300,383.84, as
justice and equity require;
(ii) Sanctions sufficient to deter the filing of similar actions by plaintiffs in the future of $150,000.00.
(iii) Conditional appellate attorney's fees of $50,000.00 for a second appeal to the court of appeals, which such appeal
does not result in a complete reversal of all amounts awarded; and
(iv) Conditional appellate attorney's fees of $25,000.00 if a petition for review is filed in the Texas Supreme Court, which
such petition does not result in a complete reversal of all amounts awarded.
Plaintiffs shall pay the foregoing amounts, except for the conditional awards of appellate attorney's fees, to Neal
Rauhauser not later than 30 days after the date this order is signed.
Furthermore, in view of plaintiffs' history of filing numerous lawsuits with the willful, malicious intent to injure those
who have spoken critically of plaintiffs, the Court finds that monetary sanctions alone will not be sufficient to deter
plaintiffs from filing similar such suits in the future. Therefore, in addition to the monetary sanctions awarded above,
the Court orders the following nonmonetary sanctions:
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McGibney v. Retzlaff, 2016 WL 1703694 (2016)
(i) Plaintiffs shall disclose and transfer to Rauhauser the following domain names registered and used by plaintiffs days
after the date on which the Court signs its order;
nealrauhauser.com
nealrauhauser.exposed
rauhauserunmasked.com
nealrauhauser.org
nealrauhauser.net
nealrauhauser.info
(ii) Plaintiffs shall disclose all domain names that plaintiffs or their agents have registered using, any form of the name
of attorney “Jeffrey L. Dorrell” no later than 5 days after the date on which the Court signs its order:
(iii) Plaintiffs shall publish for 365 consecutive days a written apology on the first page of all websites owned by either
plaintiff for calling Rauhauser a “woman beater” and “pedophile supporter” and admitting that plaintiffs had no
evidence to support such accusations when they made them.
(iv) Plaintiffs shall publish for 365 consecutive days a written apology on the first page of all websites owned by either
plaintiff for calling Dorrell a “pedophile” and admitting that plaintiffs had no evidence to support such an accusation
when they made it.
This is a final, appealable order that disposes of all parties and claims in this suit.
SIGNED the 14 th day of April, of 2016.
<>
PRESIDING JUDGE
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 5