Kanyezi Africa Safari, Inc. v. Tammy Sells, Ida Burnaman, and Jerry Burnaman ( 2022 )

Opinion issued February 24, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00179-CV
———————————
KANYEZI AFRICA SAFARI, INC., Appellant
V.
TAMMY SELLS, IDA BURNAMAN, AND JERRY BURNAMAN, Appellees
On Appeal from County Civil Court at Law No. 2
Harris County, Texas
Trial Court Case No. 1102079
MEMORANDUM OPINION
Following a bench trial, the trial court rendered judgment against Kanyezi
Africa Safari, Inc. (Kanyezi) in favor of Tammy Sells, Ida Burnaman, and Jerry
Burnaman based on their causes of action for breach of contract and violation of the
Deceptive Trade Practices Act (DTPA).1 The trial court awarded Sells and the
Burnamans a single recovery of actual damages and attorney’s fees under both
theories of recovery.
On appeal, Kanyezi raises eight issues.2 Kanyezi contends that (1) the
Burnamans were not consumers under the DTPA (issue one); (2) the evidence was
insufficient to support the judgment under either the DTPA or breach-of-contract
theories (issues two through four); (3) the trial court erred in awarding attorney’s
fees (issues five and six); (4) the trial court’s judgment violated the one-satisfaction
rule (issue seven); and (5) opposing counsel engaged in improper closing argument
(issue eight).
We affirm in part, reverse in part, and remand for further proceedings.
Background
In 2016, Tammy Sells suggested to her parents—Ida and Jerry Burnaman—
that the three of them take an African safari to celebrate the Burnamans’ 55th
wedding anniversary and Jerry’s 80th birthday. The Burnamans agreed with the
suggestion, and Tammy, who worked as a flight attendant, began researching to find
1
See TEX. BUS. & COM. CODE §§ 17.41–.63.
2
We note that the issues contained in the “Issues Presented” section of Kanyezi’s
brief do not match exactly the order of the issues in the main headings in the body
of its brief. We consider the issues in the order presented in the body of the brief.
2
a safari company for their trip. Tammy found information on the internet about
Kanyezi, a company providing non-hunting safaris in South Africa.
Evidence at trial showed that Kanyezi was founded in 1983 by Christopher
Cote. He and his son, Michael, own Kanyezi, which employed 11 people. Chris and
Michael both worked for Kanyezi being responsible for Kanyezi’s guest services
and safety, administration, vendor relations, and for drafting advertisements and
contracts for the company.
Kanyezi is licensed by the California Attorney General to sell travel services
within the United States, and it has an office in California. At trial, Chris testified
that he was born in California, pays taxes in California, has a California driver’s
license, and owns a home in Hawaii, where he spends time when he is in the United
States, but he spends much of his time in Africa.
Tammy initiated contact with Kanyezi through its website, requesting
information about the company and its travel services. Michael responded to
Tammy’s email, providing her with printed materials containing information about
Kanyezi and a sample safari itinerary. Tammy and Michael also spoke on the
telephone regarding Kanyezi’s services and possible itineraries for the trip.
Kanyezi emailed Tammy and Ida a “Kanyezi Safari Confirmation Contract,”
dated December 6, 2016. The contract detailed travel, lodging, and itinerary
3
information for a safari to be provided by Kanyezi between April 9–24, 2017.
Tammy, Ida, and Jerry were each listed in the contract.
As it appears in the record, the contract was nearly 50 pages long when
printed. In addition to describing what was included in the travel package and stating
the contract’s terms and conditions, the contract contained many photographs of
African animals, weather information, travel tips, and positive reviews from prior
customers interspersed throughout its pages.
On the fifth page, the contract stated that the safari package price was $8,755
per person, totaling $26,265 for three people. Among the items included in the travel
package, which was described as “all inclusive,” were lodging, most meals, game
drives to view animals, guides, and security. The package also included roundtrip,
business class airfare from Houston to Johannesburg, South Africa. Ida and Jerry
lived in Colorado and Tammy lived in Houston, but they planned to fly together
from Houston to South Africa. The contract stated that $13,132.50—50 percent of
the total price—was immediately due and that final payment was due 120 days
before departure. Regarding cancellation and change fees, the contract stated that
“all payments [are] nonrefundable” and provided that a $3,500 fee applied to
changes made within 24 months of departure, and a fee of $7,250 applied to
cancellation or change of plans within 120 days of departure.
4
Thirty-one pages into the contract appeared an “Estimate of Costs,” with
language stating, “Your expedition costs that are not included in package rate” and
“not included–not prepaid.” Under that language were listed certain expenses and
fees, such as shopping, gratuities, park fees, taxes, and visa fees. Below the list was
the total amount of $883, described as “estimated total park entry, national visa fees,
shopping, extra meals, tipping, & other fees listed above per guest (final amount
depends on your shopping & tipping).”
On December 7, 2016, Michael emailed Ida and Tammy, requesting passport
information and attaching another document that was 20 pages long. The document
contained a wide range of “travel tips,” such as updated packing, public health, and
weather information for South Africa. On pages 12 and 13, the document mentioned
various fees that would be required, such as national park fees. Parenthetically, the
document stated that the fees were “approx. $480–$840 per guest depending on tour
and length” and the fees “ARE NOW PAID DIRECTLY TO KANYEZI Before
Departure.” And beneath the heading “NEW UPDATE!” was a statement that fees
ranging from $480–$840 would be added to the final payment “per your contract.”
Tammy and Ida testified at trial that, although Tammy would pay her own
share of the trip, it was decided that Ida would transfer payment for all three of them
to Kanyezi from her bank because she and Kanyezi had accounts with the same bank.
On December 7, 2016, Ida transferred $13,132.50 to Kanyezi.
5
Michael also advised Ida to obtain travel insurance for herself and Jerry, given
their ages. Ida received an email on December 9, 2016, from Kanyezi regarding the
insurance. After receiving the information, Ida purchased travel insurance for herself
and Jerry, costing $2,389.
Kanyezi sent Ida a second Kanyezi Safari Confirmation Contract, dated
December 14, 2016. The third page reflected that Ida had paid Kanyezi $13,132.50,
described as a “50% Deposit Paid as Agreed.” It also stated that a “Final Payment”
of $15,781.50 was “Now Due” and reflected that the $15,781.50 was calculated by
adding the remaining $13,132.50 due on the safari package and an additional $2,649.
The $2,649 was calculated by multiplying $883 by three. The $883 was comprised
of “Contractual Prepaid [South African] & USA Government Fees & Taxes, [South
African] Park Entry Fees (3), Visa fees, Road Tolls, Eco Impact Fees, Cheetah
Center Fees, & All Third-Party Fees Kanyezi Is able to Prepay on Each Guest’s
Behalf As Itemized in Original Contract (below).” The fees were itemized 10 pages
after that statement.
After she received the December 14 contract, Ida emailed Kanyezi that day.
Ida wrote, “Wait! You have the amount wrong! I paid one half $13,132.50 and my
understanding [is] that was 50%. I can make a direct payment into your account after
you contact me with the revised amount.” Kanyezi responded: “Sorry for the
confusion but I think you forgot to include the contractual government taxes and
6
fees, airline taxes, national park entry fees for three parks, visa fees, & value added
tax which is 14% in South Africa.” Kanyezi told Ida that the fees “are all listed on
the bottom right of your safari confirmation contract just before the wire transfer
information in all contracts we send all guests to review prior to any payments.”
Kanyezi attached a portion of the December 14 contract stating that the final
payment was $15,781.50.
The next day, Ida emailed Kanyezi indicating that she had looked at “the
contract” and saw, under “estimates of costs,” that it stated, “NOT INCLUDED–
NOT PREPAID.” But Ida acknowledged that she “[saw] the fees now” in the
document that Kanyezi had sent on December 14. She sought clarification regarding
whether there would be additional fees. Ida expressed concern, stating, “We are
having to budget for this trip and I am getting concerned it is going to be much more
than we bargain[ed] for.” Kanyezi responded that there would be “[n]o other safari
charges . . . other than those listed in the original contract sent prior to your 50%
deposit payment.”
At trial, Ida testified that she could not reach Tammy to discuss the change in
the amount because Tammy was traveling as a flight attendant to Sydney, Australia.
Ida testified that, because there was a deadline, and she thought that she would lose
the money she had already paid, she decided to pay the amount that Kanyezi
7
requested. On December 15, 2016, Ida transferred an additional $15,781.50 to
Kanyezi.
Two days later, Tammy returned from Sydney and emailed Kanyezi. In one
email, she wrote that she was “extremely annoyed” with the way the contract was
being handled. She said that she had spoken “with Michael and was told there were
NO OTHER FEES except what we wished to tip and fees into the parks.” She said
Michael told her to bring the fees with them in cash. She did “not care” if the change
in how the fees were paid was “in small print somewhere” because she spoke directly
to Michael, who told her differently.
A short time later, Tammy sent another email, stating that she had just arrived
from Sydney that morning and would be heading back that night. She reiterated that
she was told by Kanyezi that 50 percent was required upfront and not more. Tammy
stated that it felt like a “terrible bait and switch.” She asked for an owner of Kanyezi
to call her during certain hours.
Between December 16 and December 20, 2016, Tammy left three or four
phone messages for Kanyezi. At trial, Tammy testified that the substance of her
messages “was questioning why the contract changed” and asking Kanyezi “to
rectify it.” She acknowledged that she was “very” harsh in her first phone message
and that she had used one or two curse words. She explained that the curse words
were not directed at any person but at “the situation being rectified.” Tammy testified
8
that she only used curse words in one of her messages. She explained that, at the
time she left that message, she was sleep deprived and feeling protective of her
parents who were using their savings for the trip.
On December 19 and 20, Tammy and a South African “travel specialist”—
who had some affiliation with Kanyezi—exchanged emails. The travel specialist
informed Tammy that her voice messages and emails had been sent to Michael and
Chris, who were away on safari with guests. Tammy was also told that Chris was
angry about the messages. The travel specialist said that Chris would email Tammy
when he returned from safari.
Tammy emailed Chris, reiterating that Michael had told her on the phone that
she and her parents should bring $883 in cash for fees and would not be required to
pay the fees upfront. Tammy stated that she apologized if she had offended Chris,
but she said that she did not apologize for protecting her parents. Tammy requested
to have a telephone conversation with Chris.
Tammy testified that, from December 20, 2016 until January 5, 2017, no one
from Kanyezi called her. Neither she nor Ida had any communication with Kanyezi
during that period. She also testified that she left no phone messages for Kanyezi
during that period. However, at trial, Chris claimed differently, testifying that
Tammy continued to leave offensive messages during that time.
9
On January 5, 2017, Tammy sent a message to K. Peterson, who had posted
an online review for Kanyezi. Tammy told Peterson that she had “booked with”
Kanyezi and that “the agreement change[d] as the second half of the money was to
be wired.” Tammy explained that they had paid Kanyezi, but Kanyezi had not
returned her phone calls for three weeks. Tammy told Peterson that she wanted “to
find someone who has in fact been on a safari” with them, who could “tell [her] what
kind of company they are.” Tammy posted similar statements about Kanyezi on an
online travel forum. She again asked if anyone had information about the company.
Tammy also spoke with Michael on the phone that day. Tammy testified that
Michael told her that he could not answer any of her questions. She stated that the
tone of the conversation was different than the previous calls she had with Michael,
but she did not think there was anything “rude or impolite on either side” of the
conversation.
Kanyezi sent an email to Tammy dated January 5, 2017, informing her that it
was “attempting cancellation” of the “non-refundable airfare” and other services that
it had “contracted to undertake on your behalf in Africa.” Kanyezi stated that it
would communicate in writing “regarding the final disposition of your written
contract.” Tammy forwarded the email to Ida, who emailed Kanyezi. Ida told
Kanyezi that they did not want cancellation because they “could not afford to cancel
unless you refund everything including the insurance money you wanted us to take
10
out.” Ida said that she thought there was a “communication problem” and that they
“really need[ed] to talk.”
An hour later, Ida sent another email stating, “You have my money and I have
a contract which I, nor Tammy, have not asked to cancel.” Ida asked, “Where in the
contract does it say you can cancel on me?” She said that she was “very concerned”
that Kanyezi had not returned her calls” and asked Kanyezi to call her. An hour later,
Ida sent a third email directed to Michael in which she asked him to call her and told
him that they were “taking a lot of our savings to do this trip.” She explained that
was the reason Tammy asked questions and that Tammy was worried for her parents.
A short time later, Kanyezi responded in a lengthy email, informing Ida that
it was cancelling the trip. Kanyezi did not state that it was refunding the money that
it had received from Ida for the trip. Instead, Kanyezi represented that it was
attempting to obtain funds back “from airline suppliers and other hotel and ground
vendors that make up the many components of your safari expedition reserved with
us under written contract.”
Kanyezi stated that it had not returned Tammy’s phone messages at the times
she had requested because of the time-zone differences between the United States
and South Africa. Kanyezi also asserted that Tammy was never told that the fees
above the cost of the safari package should be brought to Africa in cash and not
prepaid. It stated that the information was sent in writing regarding prepayment of
11
the fees before any money was paid. Kanyezi claimed that it had never previously
been accused of dishonesty.
Kanyezi informed Ida: “[W]e believe now it [is] best you seek out another
safari operator.” Kanyezi again stated that it would attempt to obtain money back
that it had paid to third-party vendors, but it did not state that it would refund all the
money it had been paid under the contract. Kanyezi said all future communication
would be by email.
Ida responded that day, asking Kanyezi not to cancel the trip because they
were “of modest means” and would “not be able to make the trip after losing
money.” Ida said that there had been miscommunication about the price of the
package, which was why Tammy sought reassurance about the contract price.
At trial, Chris testified that he had then spoken with Ida on the telephone and
had agreed to go forward with providing the trip. However, Ida testified that there
was no such telephone conversation with Chris, nor did she hear back from Kanyezi
by email regarding retraction of the cancellation.
On January 13, 2017, Chris sent an email to Ida informing her that Kanyezi
had been alerted to Tammy’s January 5 posting on an online travel forum in which
Tammy stated that Kanyezi had been paid the “the entire amount asked for even
though they had changed the agreement before the second half [of the payment] was
due.” Tammy had posted that she could not “get anyone to communicate with [her]
12
in almost three weeks” and that [n]o one seems to answer the phone now.” She asked
if anyone had information that they could share about Kanyezi.
Chris claimed in his email to Ida that the online posting was “libelous” and
had cost Kanyezi money because of lost business. Chris said that he had contacted
his attorney and “will deal with this legally now.” He closed the email by stating,
“You will each be hearing from our attorney as quickly as we can organize a
lawsuit.”
Ida sent an email to Chris in which she again said that she thought it had all
arisen from “a miscommunication due to lack of contact.” She asked Chris, “Do you
really want to hurt us by taking our savings?” Ida also told Chris that she thought
Kanyezi “should return our $28,914 which we understood bought your product, the
safari trip. Since you canceled the trip, you should return the money and the over
$2000 we spent on insurance that Michael insisted we needed.” Kanyezi did not
respond to Ida’s email.
Tammy also corresponded with Chris regarding his email. Chris ended his
correspondence with Tammy by stating, “See you in court.” And Tammy told Chris
that she had already contacted her attorney.
Tammy and her parents retained an attorney, Kenneth Baird. On February 15,
2017, Baird mailed a demand letter to Michael at Kanyezi’s California office. The
letter stated that Baird had been retained regarding Tammy’s and the Burnamans’
13
breach-of-contract and DTPA claims against Kanyezi. The letter stated that Kanyezi
had “violated the DTPA by falsely advertising its services and taking advantage of
[Tammy] and her parents to a grossly unfair degree.” The letter also “advised that
by unilaterally cancelling the contract without justification, Kanyezi Africa Safaris
has committed a material breach of contract.” The letter requested “an immediate
refund of the $28,914 which has been paid by our clients.” The letter warned that if
Kanyezi did not refund that amount within 30 days, Tammy and the Burnamans
would file suit in Harris County to recover damages.
On March 6, 2017, Kanyezi sent an email to Ida and Tammy that contained
ticketing information for flights booked for April 9, 2017, from Montreal to
Johannesburg for Tammy and the Burnamans. At trial, Ida testified that before the
March 6 email, they had not heard from Kanyezi other than receiving what she
perceived as automatically generated emailed advertisements—that she described as
“stock stuff”—that did not address their trip or retract Kanyezi’s cancellation.
The March 6 email received by Ida and Tammy with the Montreal to
Johannesburg flight information asked them to respond to Kanyezi by the next day,
March 7, to inform Kanyezi whether they all would leave from Houston or whether
the Burnamans would leave from Denver and Tammy from Houston. The email also
stated that, “[c]ompliments of Kanyezi Safari ownership,” they would receive
upgrades to their safari package and additional amenities.
14
On March 6, attorney Baird emailed Kanyezi, asking questions about the
email containing the flight and trip information. Baird attached the February 15
demand letter that he had sent to Kanyezi. Kanyezi did not respond to Baird’s email.
Tammy told Ida to call the airlines to check on the tickets. When she called, Ida
discovered that Kanyezi had canceled the tickets on March 8.
Kanyezi sent Ida a check for $18,414, which was over $10,000 less than the
amount paid to Kanyezi. The check was dated March 13, 2017. In the memo,
Kanyezi wrote, “April 2017 Non Refundable Contract.” Beneath that was written,
“Full Final Refund.” On April 10, 2017, Ida mailed the check back to Kanyezi at its
California address.
On November 28, 2017, Tammy and her parents (hereafter, referred to as
Appellees) filed suit against Kanyezi, Chris, and Michael. Chris and Michael filed
special appearances and were dismissed from the suit based on lack of personal
jurisdiction. Appellees amended their petition, asserting causes of action against
only Kanyezi for breach of contract, violation of the DTPA, common-law fraud,
conversion, and violation of the Texas Theft Liability Act. 3 Baird filed a motion to
withdraw as Appellees’ counsel in June 2019. In September 2019, Jon Hill appeared
as Appellees’ new counsel.
3
See TEX. CIV. PRAC. & REM. CODE §§ 134.001–.005.
15
On September 23, 2020, the trial court rendered summary judgment in favor
of Kanyezi on Appellees’ Theft Liability Act and conversion claims. As the
prevailing party on the Theft Liability Act claim, Kanyezi was entitled to its
“reasonable and necessary attorney’s fees.” See TEX. CIV. PRAC. & REM. CODE §
134.005(b); Agar Corp., Inc. v. Electro Cirs. Int’l, LLC, 580 S.W.3d 136, 148 (Tex.
2019) (holding that defendant “prevailed” under Theft Liability Act when it obtained
summary judgment on plaintiff’s Theft Liability Act claim, entitling it to attorney’s
fees for defending against claim).
On November 6–7, 2019, the case was tried to the bench on Appellees’ claims
of common-law fraud, violation of the DTPA, and breach of contract. Ida and
Tammy testified for Appellees, and Chris testified for Kanyezi. Included in the
parties’ evidence were the December 6 and December 14, 2016 contracts, the emails
exchanged between the parties, and Baird’s demand letter. During trial, the parties
agreed that the issue of attorney’s fees would be determined by submission after a
determination of liability and damages.
On November 7, 2020, the trial court rendered an interlocutory judgment in
favor of Appellees on their breach-of-contract and DTPA claims but determined that
Appellees were not entitled to recover on their common-law fraud claim. The trial
court determined that Appellees were entitled to actual damages of $28,914 with
attorney’s fees yet to be determined.
16
The parties filed affidavits, billing records, other evidence, and briefing to
support their respective attorney’s fees. On November 18, 2019, the trial conducted
a hearing on the issue of attorney’s fees.
On November 22, 2019, the trial court signed a “Final Judgment.” Kanyezi
timely filed a motion for new trial and a motion to modify, extending the trial court’s
plenary power. See TEX. R. CIV. P. 329b. Because no order on the motions was
signed, the motions were overruled by operation of law on February 5, 2020. See
TEX. R. CIV. P. 329b(c) (motion for new trial or motion to modify overruled by
operation of law 75 days after judgment signed if not determined by written order).
The trial court conducted a hearing on the post-judgment motions on February
18, 2020, during which it orally overruled Kanyezi’s post-judgment arguments made
in its motion. At the hearing, the parties agreed that the Final Judgment had not been
properly structured with respect to damages and attorney’s fees. On February 27,
2020—within 30 days after Kanyezi’s post-judgment motions were overruled—the
trial court signed a “Final Judgment–Clarified,” which is the final judgment in this
case. See TEX. R. CIV. P. 329b(e) (plenary power extended until 30 days after timely
filed motion for new trial or motion to modify motions overruled).
The trial court rendered judgment for Appellees and against Kanyezi based on
breach of contract and violations of the DTPA, awarding actual damages of
$28,914—the total amount of money Appellees paid to Kanyezi—plus prejudgment
17
interest. The trial court also awarded Appellees attorney’s fees of $25,182.61. The
judgment reflects that the trial court found that Appellees “were entitled to attorney’s
fees in the amount of $27,682.61, but that [Kanyezi was] entitled to an offset amount
for attorney’s fees incurred in the defense of the Texas Theft Liability Claim as the
prevailing party in the amount of $2,500.00.” The next day, the trial court issued
findings of fact and conclusions of law.
Kanyezi appealed. It raises eight issues in which it challenges the trial court’s
liability findings and award of attorney’s fees.
One-Satisfaction Rule
Because it aids in understanding other issues, we begin with Kanyezi’s
seventh issue in which it contends that the trial court’s final judgment should be
modified because it violates the one-satisfaction rule and impermissibly allowed a
double recovery of damages. Under the one-satisfaction rule, a plaintiff is entitled to
only one recovery for any damages suffered because of a particular injury. See Tony
Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 303 (Tex. 2006). A double recovery
occurs when a judgment awards a plaintiff more than one recovery for the same
injury. Halliburton Energy Servs., Inc. v. Axis Techs., LLC, 444 S.W.3d 251, 263
(Tex. App.—Dallas 2014, no pet.) (citing Waite Hill Servs., Inc. v. World Class
Metal Works, Inc., 959 S.W.2d 182, 184 (Tex. 1998)). “A party may seek damages
based on alternative theories, but it is not entitled to a double recovery.” TMRJ
18
Holdings, Inc. v. Inhance Techs., LLC, 540 S.W.3d 202, 208 (Tex. App.—Houston
[1st Dist.] 2018, no pet.). But, if a party receives favorable findings on two or more
theories of recovery that are consistent with each other and result in the same
damages, then the trial court may render judgment awarding a single recovery of
these damages, and the judgment may be based on all of the theories. Hatfield v.
Solomon, 316 S.W.3d 50, 59 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
Here, the trial court determined that Appellees were entitled to recover under
two theories of recovery: breach of contract and violation of the DTPA. Those two
theories of recovery are consistent with each other and resulted in identical damages
and attorney’s fees. In its “Final Judgment”—signed on November 22, 2019—the
trial court separately awarded the same amount of actual damages and attorney’s
fees under each of theory of recovery, making it appear that Appellees were entitled
to recover damages twice—once for breach of contract and once for violation of the
DTPA. Kanyezi objected in its combined motion for new trial and motion to modify
that the judgment awarded an impermissible double recovery. At the hearing on the
combined motion, Kanyezi raised the objection and requested that Appellees elect
whether they recover under breach of contract or violation of the DTPA. Appellees
stated that they would elect recovery under the DTPA. Kanyezi asked the trial court
to modify the judgment to reflect only recovery under the DTPA. The trial court
denied the request for modification.
19
Later in the hearing, a discussion ensued in which the trial court and the parties
agreed that the judgment needed to be clarified to reflect that, although the trial court
found in favor of Appellees on two theories of recovery, Appellees were entitled
only to single recovery of damages and attorney’s fees. On February 27, 2020, the
trial court signed its “Final Judgment–Clarified.” That judgment reflects that the trial
court found in favor of Appellees on both breach of contract and violation of the
DTPA but awarded only a single recovery of damages and attorney’s fees. In its
findings of fact and conclusions of law, the trial court concluded: “Plaintiffs are not
required to elect remedies because the amount recovered . . . under both theories and
causes of action are the same.”
On appeal, Kanyezi asserts that the trial court’s judgment should be modified
to reflect that Appellees elected to recover on its DTPA claim. However, Appellees
made that election before the parties and the trial court realized that the judgment
should be restructured to award Appellees a single recovery of damages and
attorney’s fees under the two theories of recovery on which Appellees prevailed.
The trial court had then signed a new judgment reflecting a single recovery of
damages and attorney’s fees. Because the damages and attorney’s fees recoverable
under the breach-of-contract and DTPA theories are identical and because the trial
court awarded a single recovery of damages, Appellees were not required to elect
between these theories of recovery. See Alief Indep. Sch. Dist. v. Perry, 440 S.W.3d
20228, 245 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); Hatfield, 316 S.W.3d
at 59. Therefore, we reject Kanyezi’s argument that the trial court’s final judgment
requires modification.
We overrule Kanyezi’s seventh issue.
Breach of Contract
In its fourth issue, Kanyezi contends that “the trial court erred in holding
Kanyezi breached the contract.” But before we discuss the merits of this issue, we
address Kanyezi’s contention that Tammy did not have standing to bring a breach of
contract claim.
A. Standing
1. Legal Principles
A party’s standing to seek relief is a question of law we review de novo. Tex.
Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004). The
standing doctrine requires (1) a real controversy between the parties that (2) will
actually be determined by the judicial declaration sought. See Austin Nursing Ctr.,
Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005); Brown v. Todd, 53 S.W.3d 297,
305 (Tex. 2001). “The issue of standing focuses on whether a party has a sufficient
relationship with the lawsuit so as to have a justiciable interest in its outcome.” See
Lovato, 171 S.W.3d at 848 (internal quotation marks omitted). A plaintiff has
standing when she is personally aggrieved, regardless of whether she is acting with
21
legal authority. Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659,
661 (Tex. 1996).
To establish standing to assert a breach of contract claim, a party must prove
her privity to the agreement, or that she is a third-party beneficiary. Foster v. Nat’l
Collegiate Student Loan Tr. 2007-4, No. 01-17-00253-CV, 2018 WL 1095760, at
*7 (Tex. App.—Houston [1st Dist.] Mar. 1, 2018, no pet.) (mem. op.) (citing OAIC
Commercial Assets, L.L.C. v. Stonegate Village, L.P., 234 S.W.3d 726, 738 (Tex.
App.—Dallas 2007, pet. denied)). For standing purposes, privity is established if the
plaintiff proves that the defendant was a party to an enforceable contract with the
plaintiff. Id. In short, “[a] party to a contract has standing to maintain a suit on the
contract.” Am. Heritage, Inc. v. Nevada Gold & Casino, Inc., 259 S.W.3d 816, 820
(Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing Interstate Contracting Corp.
v. City of Dall., 135 S.W.3d 605, 618 (Tex. 2004)).
2. Analysis
Kanyezi asserts that Tammy does not have standing because “the Contract
was between Kanyezi and Ida and was created on December 7, 2016, when Ida paid
$13,132.50 to Kanyezi.” Kanyezi points out that, on that date, Tammy was traveling
to Australia for work and that, after the contract’s creation, Kanyezi did not discuss
the contract with her until December 17. It also claims that “Tammy paid no
consideration whatsoever to Kanyezi.”
22
To resolve whether a plaintiff has standing, we look to the facts alleged in the
petition, but we may consider other evidence in the record if necessary. Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). The standing inquiry “requires
careful judicial examination of a complaint’s allegations to ascertain whether the
particular plaintiff is entitled to an adjudication of the particular claims asserted.”
Heckman v. Williamson Cty., 369 S.W.3d 137, 153 (Tex. 2012).
Here, Tammy and her parents alleged in their amended petition that all three
of them “entered into a valid and enforceable contract” with Kanyezi. They claimed
that they and Kanyezi “agreed for Defendant Kanyezi to provide three safaris to
[Tammy and her parents] for a fixed price of $26,265 to be paid in two equal
installment payments.” They alleged that they “fulfilled all of their obligations under
the contract” by “remitt[ing] the agreed fifty percent deposit” and that later Kanyezi
“received the full purchase price” from them.
The evidence showed that Tammy engaged in the upfront negotiations with
Kanyezi about the terms of the contract. The contract was emailed to both Tammy
and Ida on December 7, 2016. Tammy and her parents are separately named and
listed in the contract received on December 6 and then again in the contract received
on December 14. The contract is clear that each are receiving travel services from
Kanyezi.
23
Ida and Tammy testified that Tammy paid her share of the trip, but they
decided that payment would be made from Ida’s account because Kanyezi’s bank
account was with Ida’s bank, making transfer easier. After payment was made,
Kanyezi continued to communicate with Tammy about the contract. The evidence
also showed that Kanyezi considered Tammy a party to the contract. In Chris’s
January 13, 2017 email to Ida—in which he indicated that he planned to sue
Appellees for allegedly damaging his business—Chris reminds Ida, “Your daughter
[Tammy] made an agreement contractually.”
We conclude that the allegations in the amended petition and the evidence
sufficiently showed that Tammy was a party to the contract. Thus, we hold that
Tammy had standing to assert a breach-of-contract claim against Kanyezi.
B. Sufficiency of the Evidence
The essential elements of a breach of contract claim are (1) the existence of a
valid contract; (2) performance or tendered performance by the plaintiff; (3) breach
of the contract by the defendant; and (4) damages sustained resulting from the
breach. B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied). Kanyezi asserts that the evidence was legally and
factually insufficient to support a determination that it breached the contract. In their
amended petition, Appellees alleged that Kanyezi breached the contract when it
“unilaterally” cancelled it.
24
Relevant to the breach, the trial court’s findings of fact and conclusions of law
included the following:
• Kanyezi “unilaterally breached the contract . . . in January 2017,”
representing that “the contract was terminated.”
• Kanyezi “indicated that the safari contract was cancelled.”
• Kanyezi’s “silence regarding a refund indicated [its] intent to keep all
funds paid by [Appellees] without providing the services promised.”
• Kanyezi “did not respond to [Appellees’] request for reinstatement of
the safari, refund of all amounts paid, or any other inquiry regarding the
status of the safari trip between January 13, 2017 and March 6, 2017.”
• Kanyezi sent “some emails . . . regarding aesthetic considerations of
activities going on at the safari location,” but “the Court finds these
were automated and not specifically directed at the contractual issues
or inquiries between the parties. As such, they do not repudiate the
actuality of [Kanyezi’s] silence and non-responsiveness toward
[Appellees] between January 13, 2017 and March 6, 2017.”
• Kanyezi “broke the agreement between the parties.”
C. Standard of Review
In an appeal from a bench trial, the trial court’s findings of fact have the same
weight as a jury verdict. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994);
Nguyen v. Yovan, 317 S.W.3d 261, 269-70 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied). When the appellate record contains a reporter’s record, findings of fact
on disputed issues are not conclusive and may be challenged for the sufficiency of
the evidence. See Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003).
We review the trial court’s findings of fact under the same sufficiency of the
25
evidence standard used to determine whether sufficient evidence exists to support a
jury finding. See Catalina, 881 S.W.2d at 297; Nguyen, 317 S.W.3d at 269–70.
When considering whether legally sufficient evidence supports a challenged
finding, we must consider the evidence that favors the finding if a reasonable fact
finder could, and disregard contrary evidence unless a reasonable fact finder could
not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We view the
evidence in the light most favorable to the trial court’s finding and indulge every
reasonable inference to support it. Id. at 822. Because it acts as the fact finder in a
bench trial, the trial court is the sole judge of the credibility of witnesses and the
weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116
S.W.3d 757, 761 (Tex. 2003). If the evidence at trial “would enable reasonable and
fair minded people to differ in their conclusions,” we will not substitute our
judgment for that of the fact finder. City of Keller, 168 S.W.3d at 822.
In a factual sufficiency review, we consider and weigh all the evidence. Cain
v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When a party challenges the factual
sufficiency of the evidence supporting an adverse finding on an issue on which it did
not have the burden of proof, it must demonstrate that the finding is so contrary to
the overwhelming weight of the evidence as to be clearly wrong and manifestly
unjust. Id.26
A party may not challenge the trial court’s conclusions of law for factual
sufficiency, but we may review the legal conclusions drawn from the facts to
determine their correctness. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d
789, 794 (Tex. 2002). In an appeal from a bench trial, we review a trial court’s
conclusions of law de novo, affirming the judgment on any legal theory that finds
support in the evidence. Id.D. Analysis
The trial court’s findings indicate that the court determined that Kanyezi
breached the contract in January 2017 by representing to Appellees that the contract
was “cancelled” and “terminated” before Kanyezi’s performance under the contract
was due. We conclude that the trial court’s finding that Kanyezi breached the
contract has support in the law and in the record.
“A breach [of contract] occurs when a party fails or refuses to do something
[it] has promised to do.” Markovsky v. Kirby Tower, L.P., No. 01-13-00516-CV,
2015 WL 8942528, at *3 (Tex. App.—Houston [1st Dist.] Dec. 15, 2015, no pet.)
(mem. op.). “Repudiation or anticipatory breach is a positive and unconditional
refusal to perform the contract in the future, expressed either before performance is
due or after partial performance.” CMA-CGM (Am.), Inc. v. Empire Truck Lines,
Inc., 416 S.W.3d 495, 519 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). “It is
conduct that shows a fixed intention to abandon, renounce, and refuse to perform the
27
contract.” Id. (citing In re Braddock, 64 S.W.3d 581, 585 (Tex. App.—Texarkana
2001, no pet.)).
Here, the evidence showed that, on January 5, 2017, Kanyezi informed Ida
that it was cancelling Appellees’ trip and would not be providing the contracted-for
safari services for which Appellees had already paid in full. Kanyezi told Ida that it
“believe[d] now it [is] best you seek out another safari operator.” Even though it had
unilaterally decided to cancel, Kanyezi did not offer to return Appellees’ funds but
instead indicated that it would return what funds it could recover from third-party
vendors. By informing Ida that it was not providing the safari services, and that
Appellees would need to find another safari operator, Kanyezi repudiated the
contract. See id.Ida emailed Kanyezi stating that, because she did not want to lose any money,
she did not want the trip canceled. But Kanyezi did not respond to Ida’s email by
retracting the repudiation. See Tubb v. Aspect Int’l, Inc., No. 12-14-00323-CV, 2017
WL 192919, at *3 (Tex. App.—Tyler Jan. 18, 2017, pet. denied) (mem. op.) (“[T]he
defendant can assert that it timely retracted its own repudiation by notifying the
plaintiff that it intended to perform.”). Instead, the evidence supported a reasonable
inference by the trial court that Kanyezi reaffirmed and reasserted its repudiation of
the contract by Chris’s January 13, 2017 communications. Chris emailed Ida
informing her that he was contacting his attorney and intended to sue Appellees for
28
defamation. That same day, Chris’s last message to Tammy was “see you in court,”
thereby confirming Kanyezi’s repudiation. See Group Life & Health Ins. Co. v.
Turner, 620 S.W.2d 670, 673 (Tex. Civ. App.—Dallas 1981, no writ) (“Repudiation
consists in such words or actions by a contracting party as indicate that he is not
going to perform his contract in the future.” (internal quotation marks omitted)).
As the Supreme Court of Texas explained, “We have long recognized the rule
of anticipatory breach: the repudiation of a contract before the time of performance
has arrived amounts to a tender of breach of the entire contract and allows the injured
party to immediately pursue an action for damages.” Murray v. Crest Const., Inc.,
900 S.W.2d 342, 344 (Tex. 1995) (citing Pollack v. Pollack, 46 S.W.2d 292, 293
(Tex. Comm’n App. 1932)). By its conduct, Kanyezi repudiated the contract,
tendering breach of the contract. In response to Chris’s January 13 communication,
Ida emailed him that same day. She informed Chris that Kanyezi “should return our
$28,914 which we understood bought your product, the safari trip. Since you
canceled the trip, you should return the money and the over $2000 we spent on
insurance that Michael insisted we needed.” By her email, Ida accepted Kanyezi’s
tender of the breach, making Kanyezi’s repudiation an anticipatory breach. See
Pollack, 46 S.W.2d at 293 (“[I]f [tender of breach] is accepted by the other party, it
constitutes what is known in law as an anticipatory breach of such contract as a
whole, and in such event the injured party is at liberty to at once demand his damages
29
for such breach, and, if necessary, begin an action therefor.”). Appellees reaffirmed
the acceptance of the breach when their attorney sent their demand letter to Kanyezi
on February 15, 2017.
On appeal, Kanyezi asserts that the “overwhelming evidence established
Kanyezi performed as required under the Contract and fully intended to take
Appellees on safari, all the way through its cancellation of the tickets on March 8,
2017.” Kanyezi claims that Appellees breached the contract when they sent the
February 15 demand letter. Kanyezi’s assertion that it “performed as required”
primarily hinges on Chris’s testimony that, soon after Kanyezi’s January 5 email
cancelling the contract, he had a telephone conversation with Ida in which he agreed
that Kanyezi would provide Appellees with the contracted-for travel services.
However, Ida testified that the telephone conversation never occurred, and she
confirmed that Kanyezi did not correspond with Appellees specifically about the
contracted-for services until March 6, when Kanyezi emailed the flight information.
The trial court’s findings of fact indicate that it believed Ida’s testimony on this
point. And, because it was the fact finder, it was entitled to do so. See Wise v.
Conklin, No. 01-13-00840-CV, 2015 WL 1778612, at *3 (Tex. App.—Houston [1st
Dist.] Apr. 16, 2015, no pet.) (mem. op.) (“In a bench trial, the trial court is the sole
judge of the witnesses’ credibility, and it may choose to believe one witness over
another; a reviewing court may not impose its own opinion to the contrary.”).
30
Kanyezi also contends that evidence showed that it had intended to perform
the contract because it “continued to send updates to Appellees as it would to any
other guests.” Related to this contention, the trial court found:
[Kanyezi] did cause some emails to be sent regarding aesthetic
considerations of activities going on at the safari location. However, the
Court finds these were automated and not specifically directed at the
contractual issues or inquiries between the parties. As such, they do not
repudiate the actuality of [Kanyezi’s] silence and non-responsiveness
toward Plaintiffs between January 13, 2017 and March 6, 2017.
The finding was supported by Ida’s testimony in which she stated that before
the March 6 email, Appellees had not heard from Kanyezi other than receiving what
she perceived as automatically generated, emailed advertisements—that she
described as “stock stuff”—which did not address their trip or retract Kanyezi’s
cancellation. Thus, the trial court’s finding regarding the emails was a reasonable
inference from the evidence and refuted Kanyezi’s contention that the emails
showed that it intended to perform the contract. In any event, these emails were sent
after Kanyezi’s repudiation and anticipatory breach of the contract, as discussed.
Kanyezi also points to an email it received from Ida on January 28, 2017, in
which she inquired, “Since I have not received my money back, does that mean the
trip is still on?” She provided updated passport information “in case it was.” Kanyezi
contends that Ida believed that the trip was proceeding and that this supports its
contention that Kanyezi intended to perform the contract. However, at that time,
Kanyezi had already repudiated the contract, and Ida had requested the return of the
31
funds. Moreover, Kanyezi did not respond to the email or indicate any desire to
revive the repudiated contract.
In addition, on February 15, 2017, Appellees’ attorney, Baird, sent a demand
letter to Kanyezi, specifically addressed to Michael, at Kanyezi’s California address.
Chris testified that he was not aware of the demand letter until March 6, when he
received Baird’s email responding to Kanyezi’s March 6 email and attaching the
February 15 letter. However, because it was the fact finder, the trial court could have
disbelieved Chris’s testimony. The evidence also showed that the letter was mailed
to Michael by certified and regular mail. While the evidence showed that the
certified letter was not received, the trial court could have reasonably inferred that
the letter sent by regular mail was received by Kanyezi through Michael.
We hold that the evidence was legally and factually sufficient to support the
trial court’s finding that Kanyezi breached the contract. We overrule Kanyezi’s
fourth issue. Because the judgment can be upheld on Appellees’ breach-of-contract
claim, we need not address Kanyezi’s first three issues, which challenge the trial
court’s finding of liability in favor of Appellees on their DTPA claim. See U.S. Ply,
Inc. v. ARCI, Ltd., No. 09-17-00128-CV, 2019 WL 1830680, at *8 (Tex. App.—
Beaumont Apr. 25, 2019, no pet.) (mem. op.) (“Because we have found the record
supports the trial court’s verdict on ARCI’s breach of express warranty claims, we
need not address whether the evidence also supports the judgment on its breach of
32
implied warranty and DTPA claims.”); Robinson v. Ochoa, No. 13-16-00357-CV,
2018 WL 1633516, at *5 (Tex. App.—Corpus Christi Apr. 5, 2018, pet. denied)
(mem. op.) (concluding it was unnecessary to address appellant’s issues regarding
appellees’ causes of action for fraud, conversion, promissory estoppel, money had
and received, and violations of DTPA because evidence supported judgment on
breach of contract theory of recovery); EMC Mortg. Corp. v. Jones, 252 S.W.3d 857,
870 (Tex. App.—Dallas 2008, no pet.) (“When the judgment rests on multiple
theories of recovery, we need not address all causes of action if any one theory is
valid.”); see also TEX. R. APP. P. 47.1 (providing that opinion must be “brief as
practicable” but address every issued “raised and necessary to final disposition of
the appeal”).
Closing Argument
The record shows that Kanyezi has sued Ida and Tammy in Harris County
district court related to postings they have made on the internet regarding the parties’
dispute. In its eighth issue, Kanyezi contends that “Appellees’ improper closing
argument”—which referred to the district court litigation—“requires a new trial.”
Specifically, Kanyezi points to the following portion of the argument made by
Appellees’ attorney:
My clients in any judgment that this Court might grant need three
things: They need their trip money back; they need a judgment that ends
all the ongoing litigation, specifically we got this and collateral
defamation action. My clients don’t deserve to spend their last years in
33
ongoing circular litigation so that is really a goal of something we are
trying to accomplish here today a judgment of whatever type it is that
ends this litigation. So, I mean, you’ve seen the posts my clients made.
You got to see it later ones [sic]. They posted the truth. My clients need
a judgment that shows that. And that also defeats the collateral
defamation action that’s going on. I can’t guarantee that they are not
going to continue to sue, but if we have a finding that they did commit
a Deceptive Trade Act or fraud then that’s really going to do damage to
that case going on any further.
In its closing argument, Kanyezi responded, “[I]t’s surprising to me that
plaintiff’s counsel is arguing that this Court can make a ruling that would have some
kind of an impact on litigation that’s not before this Court. That’s not reasonable and
that’s not the law, and furthermore, that’s not the facts of this case.” Kanyezi then
explained that it had attempted to transfer the instant case to district court and
consolidate the cases, but Appellees had opposed the transfer. Kanyezi argued, “So
for plaintiffs to take the position at this point that this Court is supposed to take some
sort of action in this proceeding that will have an impact on a proceeding that
plaintiffs opposed joining is not reasonable and is inconsistent with their prior
position.”
After the parties finished their closing arguments, the trial court addressed the
parties. In its brief, Kanyezi focuses on the following comment by the trial court:
“You know, there is discussion about what’s going on in another court and, you
know, I would like to see y’all have finality and go about your lives without this
hanging over you.” Regarding this comment, Kanyezi asserts in its brief: “Thus, on
34
the record, the trial court evidenced [its] clear intent to render judgment so as to
interfere with the jurisdiction of another court and impact the trial of claims and
evidence not before him. This was blatantly improper.” Kanyezi then argues,
“Appellees’ counsel’s improper argument was intended to, and did, cause the Court
to render the improper judgment. . . .”
Although presented as an issue about improper closing argument, the
gravamen of Kanyezi’s complaint is that the trial court acted improperly at the
request of Appellees’ counsel. We are mindful that, “[i]n the absence of a clear
showing to the contrary, we will presume the trial court was a neutral and detached
officer.” Manigault v. Thorn-Henderson, No. 12-14-00156-CV, 2016 WL 786865,
at *3 (Tex. App.—Tyler Feb. 29, 2016, no pet.) (mem. op.). The complaining party
must show the judge acted improperly and that it suffered probable prejudice as a
result. Rymer v. Lewis, 206 S.W.3d 732, 735–36 (Tex. App.—Dallas 2006, no pet.).
In analyzing this issue, we examine the entire record. See id. at 736. Further, we note
that because it was the trier of fact, the trial court was fully capable of disregarding
improper argument. See Lopez v. State, 725 S.W.2d 487, 490 (Tex. App.—Corpus
Christi 1987, no pet.) (“[T]he trial court was sitting as trier of fact and was quite
capable of disregarding any improper argument, and will be presumed to have done
so.”)
35
In citing the trial court’s complained-of comment, Kanyezi takes the comment
out of context. Here is the context in which the complained-of comment (in italics)
was made:
I would encourage you all to talk. You know, there is discussion about
what’s going on in another court and, you know, I would like to see
y’all have finality and go about your lives without this hanging over
you. And so I’d like to give you an opportunity. I’m going to rule
tomorrow morning. I would like to give you an opportunity to see if
you would like to go mediate. I don’t know if you’ve mediated that
other case.
(Emphasis added.) Kanyezi’s counsel then informed the trial court that they had been
to mediation.
When viewed in context, the record shows that the trial court made the
complained-of comment in discussing possible mediation with the parties. The
comment, when read in context, does not evidence a “clear intent” by the trial court
“to render judgment so as to interfere with the jurisdiction of another court and
impact the trial of claims and evidence not before [it],” as Kanyezi claims on appeal.
Thus, Kanyezi’s conclusion—that “Appellees’ counsel’s improper argument was
intended to, and did, cause the Court to render the improper judgment”—is also
without merit.
We overrule Kanyezi’s eighth issue.
36
Attorney’s Fees
In its final judgment, the trial court awarded Appellees $25,182.61 in
attorney’s fees. The trial court found that Appellees were entitled to attorney’s fees
of $27,682.61 but that Kanyezi was “entitled to an offset amount for attorney’s fees
incurred in the defense of the Texas Theft Liability Claim as the prevailing party in
the amount of $2,500.00.” In its fifth issue, Kanyezi challenges the trial court’s
finding that Appellees were entitled to $27,682.61 in fees. In its sixth issue, Kanyezi
contends that it was entitled to more than a $2,500 offset for its attorney’s fees
incurred in successfully defending against Appellees’ Theft Liability Act claim.
A. Standard of Review
An award of attorney’s fees must be supported by evidence that the fees are
reasonable and necessary. State Farm Lloyds v. Hanson, 500 S.W.3d 84, 97 (Tex.
App.—Houston [14th Dist.] 2016, pet. denied) (citing Stewart Title Guar. Co. v.
Sterling, 822 S.W.2d 1, 10 (Tex. 1991)). We review the question of whether a trial
court’s award of attorney’s fees is reasonable and necessary for an abuse of
discretion. See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012). A trial
court abuses its discretion if its decision is arbitrary, unreasonable, and without
reference to guiding principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.
1997). Evidentiary sufficiency issues are not independent grounds under this
standard, but the sufficiency of the evidence is a relevant factor in assessing whether
37
the trial court abused its discretion. Kubbernus v. ECAL Partners, Ltd., 574 S.W.3d
444, 486 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).
B. Legal Principles
The fees in this case were presented under the lodestar method, which applies
when the claimant puts on evidence of reasonable fees by relating the hours worked
multiplied by hourly rates for a total fee. Rohrmoos Venture v. UTSW DVA
Healthcare, LLP, 578 S.W.3d 469, 495–96 (Tex. 2019). “Under the lodestar method,
the determination of what constitutes a reasonable attorney’s fee involves two steps.”
El Apple I, 370 S.W.3d at 760. In the first step, “the court must determine the
reasonable hours spent by counsel in the case and a reasonable hourly rate for such
work.” Id. “The court then multiplies the number of such hours by the applicable
rate, the product of which is the base fee or lodestar.” Id. It is the fee claimant’s
burden to provide sufficient evidence to meet the first step. Rohrmoos Venture, 578
S.W.3d at 498. There is a presumption that the base lodestar calculation, when
supported by sufficient evidence, reflects the reasonable and necessary attorney’s
fees that can be shifted to the non-prevailing party. Id. at 499.
In the second step, the court may adjust the base lodestar up or down if
relevant factors indicate an adjustment is necessary to reach a reasonable fee in the
case. Id. at 494. The second step permits the factfinder to determine whether
evidence of other considerations overcomes the presumption of reasonableness. Id.
38
at 501. If the opponent of the fee seeks a reduction, “it bears the burden of providing
specific evidence to overcome the presumptive reasonableness of the base lodestar
figure.” Id.
C. Analysis
In the trial court, Appellees requested attorney’s fees of $27,682.61. They
supported the requested fees with the affidavit and billing records of their current
attorney, Jon Hill, and with the affidavit of their former attorney, Kenneth Baird. A
portion of Baird’s fees were supported by billing records, but the greater amount
were for “unbilled work.” Among its arguments on appeal, Kanyezi asserts that
Appellees did not meet their burden in the first step of the lodestar analysis because
they failed to provide evidence of the time Baird spent on the specific tasks he
performed for the unbilled work.
Under the first step, sufficient evidence of the attorney’s fees sought includes,
at a minimum, evidence of (1) the particular services performed; (2) who performed
those services; (3) approximately when the services were performed; (4) the
reasonable amount of time required to perform the services; and (5) the reasonable
hourly rate for each person performing such services. Id. at 502. Contemporaneous
billing records are not required to prove that the requested fees are reasonable. Id.
But “[g]eneral, conclusory testimony devoid of any real substance will not support
a fee award.” Id. at 501. Generalities about tasks performed provide insufficient
39
information for the factfinder to meaningfully review whether the tasks and hours
were reasonable and necessary. See El Apple I, 370 S.W.3d at 763. There must be
some evidence to inform the trial court of the time spent on specific tasks to enable
the factfinder to meaningfully review the requested fees. See Long v. Griffin, 442
S.W.3d 253, 255 (Tex. 2014); City of Laredo v. Montano, 414 S.W.3d 731, 736
(Tex. 2013) (“In El Apple, we said that a lodestar calculation requires certain basic
proof, including itemizing specific tasks, the time required for those tasks, and the
rate charged by the person performing the work.”).
In his affidavit, Baird stated that he charged $150 per hour for his services in
this case. He testified that a portion of his fees—$7,680—was for “unbilled work.”4
With respect to the unbilled work, Baird testified as follows:
I have unbilled work in progress of 51.2 hours or $7,680. This includes
three extensive and lengthy responses to [Kanyezi’s] motions for
summary judgment, defending the depositions of all three [Appellees]
with two of the depositions approaching the six hour limit, attending an
oral hearing on a motion for continuance, and attending mediation.
While he testified that he spent a total of 51.2 hours on the listed tasks, Baird
presented no testimony or documentary evidence itemizing or otherwise allocating
4
Baird also testified that he had billed Appellees $4,865.68 for other legal services.
He attached billing records for those services. In a “Post-Trial Motion for Attorney’s
Fees,” Appellees stated that, after adjustment for fee segregation, they were seeking
to recover $6,144 of the $7,680 for unbilled work and $4,406.11 of the $4,865.68
for billed work, totaling $10,550.11 for Baird’s services.
40
the amount of time he spent on a particular task. Appellees did not provide any
additional documentation or evidence to support the $7,680 fee.
We conclude that, without any evidence of the time spent on specific tasks,
the trial court had insufficient information to meaningfully review the fees requested
for Baird’s unbilled work. See Rohrmoos Venture, 578 S.W.3d at 505; Long, 442
S.W.3d at 255; El Apple, 370 S.W.3d at 764. The trial court could not have
determined whether the time spent on each task was reasonable, the charges were
inadequately documented, or whether the tasks performed were duplicative or
unnecessary. See El Apple I, 370 S.W.3d at 762 (“Charges for duplicative, excessive,
or inadequately documented work should be excluded.”). We hold that the evidence
was not legally sufficient to support the trial court’s finding that Appellees were
entitled to recover their requested fees of $27,682.61, from which the court then
determined its ultimate fee award of $25,182.61 after subtracting $2,500 for the
offset of Kanyezi’s attorney’s fees. See Rohrmoos Venture, 578 S.W.3d at 505;
Long, 442 S.W.3d at 255; see also Advanced Tech. Transfer & Intellectual Prop.
Group LLC v. Krenek, 627 S.W.3d 540, 547 (Tex. App.—Houston [14th Dist.] 2021,
no pet.) (“Because the record does not detail the particular services performed for
34.25 of the 54.25 hours worked by attorney Krenek, we conclude the evidence is
legally insufficient to support the full award of attorney’s fees.”); Eason v. Deering
Constr., Inc., No. 02-19-00310-CV, 2020 WL 7062687, at *8 (Tex. App.—Fort
41
Worth Dec. 3, 2020, no pet.) (mem. op.) (“While Deering’s counsel testified to the
aggregate amount of fees and the general tasks carried out by himself and his two
associates, this sort of evidence has been held to be insufficient.”); Sloane v.
Godberg B’Nai B’Rith Towers, 577 S.W.3d 608, 621 (Tex. App.—Houston [14th
Dist.] 2019, no pet.) (reversing fee award where attorney “conceded that he had not
allocated hours spent on particular tasks” and billing records did not show time spent
on tasks).
The remedy here is to reverse the $25,182.61 fee award and remand the issue
to the trial court for a redetermination of attorney’s fees. See Long, 442 S.W.3d at
256; Sloane, 577 S.W.3d at 622 (“The proper remedy in cases where the evidence
fails to satisfy the standards for determining fees . . . is to remand the issue for a
redetermination of fees.”). Kanyezi asserts that this redetermination should also
include a redetermination of the amount of the offset for its attorney’s fees to which
it is entitled as the prevailing party on Appellees’ Theft Liability Act claim. Because
the record reflects that the error in finding the evidence sufficient to support
Appellees’ requested attorney’s fees also affected the trial court’s determination of
the offset amount, we agree.
Among its evidence, Kanyezi offered its attorney’s billing records and the
sworn declaration of its attorney, Laura Haley, who stated that Kanyezi’s attorney’s
fees for 186.3 hours of work, at a rate of $300 per hour, was $55,908. If segregation
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of the fees was required, Haley stated that 50 percent of the fees—or $27,954—was
for work on the Theft Liability Act claim and the intertwined conversion claim.
In its findings of fact and conclusions of law, the trial court concluded that
“Kanyezi was not entitled to a full credit or full offset for the reasonable amounts of
its attorneys’ fees incurred defending against [Appellees’] Theft Liability Act claim
and the claims inextricably intertwined therewith.” See Rohrmoos, 578 S.W.3d at
502 (“[T]he base lodestar figure can be adjusted down when it is established, based
on considerations not already accounted for in the first step, to be an unreasonably
high or excessive fee award, creating a windfall for the prevailing party or its
attorney.”); Land v. Land, 561 S.W.3d 624, 639 (Tex. App.—Houston [14th Dist.]
2018, pet. denied) (“When determining an appropriate fee award, the trial court is
entitled to examine the entire record and to view the matter in light of the amount in
controversy, the nature of the case, and his or her personal experience as a lawyer or
judge.” (internal quotation marks omitted)); see also Mogged v. Lindamood, No. 02-
18-00126-CV, 2020 WL 7074390, at *7–8, 19 (Tex. App.—Fort Worth Dec. 3,
2020, pet. denied) (mem. op.) (holding award of 22% of requested attorney’s fees
was against great weight and preponderance of evidence, and thus constituted abuse
of discretion, and remanding for redetermination).
The trial court determined that “as a Matter of Law . . . reasonable and
necessary attorney’s fees in favor of Kanyezi as the prevailing party on the Texas
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Theft Liability Act claim are $2,500.00.” In its sole finding of fact supporting the
reduction of Kanyezi’s attorney’s fees to less than 9% of its requested segregated
fees, the trial court indicated that it reduced Kanyezi’s fees by taking into
consideration the amount of Appellees’ attorney’s fees, noting that Kanyezi’s fees
“were significantly higher than [Appellees’] attorney’s fees for similar work.”
Because, as discussed above, the attorney’s fees awarded to Appellees were not
supported by legally sufficient evidence, and because the trail court’s findings
indicate that the amount of those fees affected the amount of attorney’s fees that the
trial court assigned to Kanyezi, we conclude that the offset amount for Kanyezi’s
reasonable and necessary attorney’s fees as the prevailing party under the Theft
Liability Act should also be redetermined. See TEX. CIV. PRAC. & REM. CODE
§ 134.005(b) (providing that prevailing party under Theft Liability Act “shall be
awarded court costs and reasonable and necessary attorney’s fees”).
We sustain Kanyezi’s fifth and sixth issues.
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Conclusion
We reverse the portion of trial court’s judgment awarding Appellees
$25,182.61 in attorney’s fees and remand the issue to the trial court for a
redetermination of attorney’s fees, including a redetermination of the offset amount
for Kanyezi’s attorney’s fees. The remainder of the trial court’s judgment is affirmed
in all respects.
Richard Hightower
Justice
Panel consists of Justices Kelly, Hightower, and Farris.
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