Christine Flores Desio D/B/A Professional Center of Grand Prairie and Francis Anthony Desio, Jr. A/K/A Frank Desio, Individually v. Mike Del Bosque D/B/A Injury and Rehab Center in Grand Prairie ( 2022 )

REVERSE and REMAND in part; AFFIRM in part; and Opinion Filed
February 18, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00022-CV
CHRISTINE FLORES DESIO D/B/A PROFESSIONAL CENTER OF
GRAND PRAIRIE AND FRANCIS ANTHONY DESIO, JR. A/K/A FRANK
DESIO, INDIVIDUALLY, Appellants
V.
MIKE DEL BOSQUE D/B/A INJURY AND REHAB CENTER IN GRAND
PRAIRIE, Appellee
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-04408
MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Carlyle
Opinion by Justice Reichek
Christine Flores Desio d/b/a Professional Center of Grand Prairie and Francis
Anthony Desio, Jr. a/k/a Frank Desio (the “Desios”) appeal the trial court’s award
of attorney’s fees to Mike Del Bosque d/b/a Injury and Rehab Center in Grand
Prairie (“Del Bosque”). In four issues the Desios contend the trial court erred in
concluding Del Bosque’s attorney’s fees were not capable of segregation and
awarding him all the fees he claimed. Because we agree the fees are capable of
segregation and the evidence was insufficient to support the amount awarded, we
reverse the trial court’s judgment and remand for further proceedings.
Background
This is the second appeal arising out of a commercial lease dispute between
the Desios, as landlords, and Del Bosque, as their tenant. The case involves four
leases; one for an office suite on the first floor of the Desios’ building (the “First-
Floor Lease”), and three for offices on the second floor of the building (the “Second-
Floor Leases”).
In November 2016, Del Bosque moved out of the second-floor offices.
Although he no longer occupied the second-floor, he continued to maintain his
business in the first-floor office suite. After Del Bosque informed the Desios that
he no longer intended to use the second-floor offices, the Desios changed the locks
and disposed of the property left on the second-floor premises.
Four months later, the Desios locked Del Bosque out of the first-floor office
suite for failure to pay rent. Del Bosque obtained a writ of re-entry but, nine days
later, the Desios locked Del Bosque out of the first-floor suite again. After Del
Bosque was locked out of the first-floor suite for the second time, he brought this
suit alleging the Desios had breached the First-Floor Lease. The Desios answered
and filed counterclaims alleging that Del Bosque had breached both the First-Floor
and Second-Floor Leases by failing to pay amounts due. The Desios also alleged
that Del Bosque had abandoned the second-floor offices.
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The case was tried to the court without a jury. After hearing the evidence, the
trial court found the Desios had breached all four leases at issue, but awarded no
damages to Del Bosque. Despite not awarding damages, the court awarded Del
Bosque his attorney’s fees pursuant to fee provisions in the leases.
On appeal, this Court affirmed the trial court’s judgment on liability, but
reversed the award of attorney’s fees. See Desio v. Del Bosque, No. 05-19-00224-
CV, 2019 WL 6974762, *7 (Tex. App.—Dallas Dec. 20, 2019, no pet.) (mem. op.).
We concluded that, although Del Bosque was entitled to recover his attorney’s fees
under the broad language of the Second-Floor Leases, he could not recover fees
under the more narrow language of the First-Floor Lease because he was not
awarded damages. Id.1 We then held that “[b]ecause the trial court awarded an
aggregate sum for attorney’s fees under both the First- and Second-Floor leases, and
an award was improper under the former . . . [w]e reverse the trial court’s judgment
with respect to the award of attorney’s fees and remand this cause for the trial court
to determine the amount of reasonable and necessary attorney’s fees to be awarded
to [Del Bosque] only as to the Second-Floor Leases.” Id.On remand, Del Bosque filed a “Motion to Enforce Judgment.” In the motion,
Del Bosque sought to recover all the attorney’s fees he incurred after September 4,
1
Similarly, Del Bosque could not recover his fees under section 38.001 of the Texas Civil
Practice and Remedies Code which requires the claimant to both (1) prevail on a cause of action
for which attorney’s fees are recoverable and (2) recover damages. See Green Int’l, Inc. v. Solis,
951 S.W.2d 384, 390 (Tex. 1997).
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2018 when the Desios filed their claims regarding the Second-Floor Leases. Del
Bosque contended that, after that date, all the services rendered in connection with
his First-Floor Lease claims were inseparable from the services rendered in
connection with the Second-Floor Lease claims and, therefore, segregation of the
fees was not necessary. Del Bosque additionally claimed he was entitled to the
$30,000 contingent appellate attorney’s fees awarded in the original judgment
because he was successful on appeal.
Attached to Del Bosque’s motion was an affidavit by his attorney, Talim
Song. Song testified he spent 72.1 hours “prosecuting this action, including
reviewing documents, drafting, preparing filings, preparing discovery, reviewing
discovery responses, communicating with the opposing party, and other items” at an
hourly rate of $350 per hour. The remainder of the affidavit set forth the total
number of hours worked by, and the corresponding hourly rates of, the associates
and law clerks who assisted Song on the case. In describing the work performed by
each of the associates and clerks, Song repeated verbatim his testimony about the
work he performed on the case. Song did not specify the amount of time any person
spent on particular tasks and no billing records were submitted. The amount of fees
sought, including appellate attorney’s fees, was $86,702.
The Desios responded that Del Bosque’s fees were clearly subject to
segregation and he failed to provide sufficient proof of reasonableness and necessity
to support the amount of fees claimed. The Desios further argued the absence of
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evidence to support the fees prevented them from being able to demonstrate that
some of the time expended by Song and his staff was spent on duplicative work or
did not advance recoverable claims. Finally, the Desios argued Del Bosque was not
entitled to recover all the contingent appellate attorney’s fees awarded in the original
judgment because he was only partially successful on appeal.
In support of their response, the Desios submitted an affidavit by their
attorney, Grant Bannen. Bannen testified regarding his legal experience, both in
general and on this case specifically, and stated that, in his opinion, the total amount
of fees sought by Del Bosque was excessive and not reasonable or necessary. He
characterized the suit as a “garden variety landlord-tenant dispute” involving a
simple interpretation of leases that would support a fee rate of no more than $200
per hour. He also stated he had witnessed occasions when multiple attorneys
representing Del Bosque were present when only one was required and “multiple
motions and positions taken by Del Bosque’s attorneys that did not advance a claim
that allows for the recovery of attorney’s fees.” He testified that, because of the lack
of detail in Del Bosque’s evidence, it was impossible to determine which activities
were reasonable and necessary and which advanced recoverable claims, but he
observed “Del Bosque’s counsel spent much of their time and effort on Del Bosque’s
claims related to the 1st Floor Lease and considerably less time on the 2nd Floor Lease
defenses.” Bannen opined the award of attorney’s fees “should be less than thirty
percent of the attorney’s fees requested.”
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Del Bosque filed a reply, attaching a second affidavit by Song. In the second
affidavit, Song testified his use of the word “prosecuting” in his first affidavit
included, but was not limited to, meeting with clients, reviewing documents,
drafting pleadings, reviewing pleadings filed by opposing counsel, preparing
discovery requests, reviewing discovery requests, preparing discovery responses,
reviewing discovery responses, conferences with co-counsel regarding the case,
communicating with opposing counsel, conferences with associates regarding the
case, reviewing communications between associates and opposing counsel,
preparing for and attending depositions, preparing for and attending hearings,
preparing for and attending trial, and legal research. Again, Song did not indicate
how much time was spent on any individual task and he did not submit any billing
records. However, Song revised his earlier testimony stating that “about ninety-five
percent (95%) of all the attorney’s fees requested was time spent prosecuting and
defending both the First Floor and Second Floor leases.” Accordingly, Song reduced
by 5% the amount of trial attorney’s fees he testified was recoverable, making the
total amount, including appellate attorney’s fees, $83,866.90.
Following a hearing at which no additional evidence was introduced, the trial
court awarded Del Bosque the full $86,702 in attorney’s fees sought in the motion.
In response to a request by the Desios, the court filed findings of facts and
conclusions of law. Among other things, the court found (1) segregation of Del
Bosque’s attorney’s fees was not required “because the legal services were so
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intertwined following the filing of the counterclaim by [the Desios],” (2) Del
Bosque’s attorney’s fees of $56,702 were reasonable and necessary, and (3) Del
Bosque was the prevailing party on appeal entitling him to the $30,000 in contingent
appellate attorney’s fees awarded in the original judgment.
The Desios then requested the trial court make additional or amended findings
of fact to provide the basis for its conclusions that the First- and Second-Floor Lease
claims were intertwined and that all the fees claimed were reasonable and necessary.
The Desios also asked the court to explain why it had awarded Del Bosque all of the
trial attorney’s fees requested after Del Bosque’s attorney testified the fees should
be reduced by 5%. The court denied the request for additional or amended findings
and this appeal followed.
Analysis
I. Jurisdiction
Before addressing the issues brought by the Desios, we must first address a
jurisdictional issue raised by Del Bosque. Del Bosque contends the Desios notice
of appeal was untimely because their request for findings of fact and conclusions of
law was unnecessary and did not extend the appellate deadlines.
Generally, a notice of appeal must be filed within thirty days after the trial
court’s judgment is signed. TEX. R. APP. P. 26.1. The deadline to file the notice of
appeal is extended to ninety days when a party files a request for findings of fact or
conclusions of law “if findings and conclusions either are required by the Rules of
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Civil Procedure or, if not required, could properly be considered by the appellate
court.” TEX. R. APP. P. 26.1(a)(4). Where the trial court was not called upon to
determine questions of fact based on conflicting evidence, findings and conclusions
serve no purpose and a request for findings and conclusions will not extend the time
for perfecting an appeal. See IKB Indus., (Nigeria) Ltd. v. Pro-Line Corp., 938
S.W.2d 440, 443 (Tex. 1997); Smith v. Padilla. L.L.C., No. 02-17-00326-CV, 2018
WL 895465, *2 (Tex. App.—Fort Worth Feb. 15, 2018, no pet.) (mem. op.).
In this case, both sides submitted affidavits addressing the issues of
segregation and the reasonableness and necessity of the fees requested. The extent
to which claims can be segregated poses a mixed question of law and fact.
Namdarkhan v. Glast, Phillips & Murray, P.C., No. 05-18-00802-CV, 2020 WL
1969507, *9 (Tex. App.—Dallas April 24, 2020, pet. denied) (mem. op.). Whether
the fees sought are reasonable and necessary is purely a question of fact. Bocquet v.
Herring, 972 S.W.2d 19, 21 (Tex. 1998). Because the trial court was called upon to
resolve questions of fact based on conflicting evidence submitted by the parties, the
Desios’ request for findings and conclusions was appropriate.
Del Bosque argues the affidavit submitted by the Desios’ attorney was
insufficient to create a fact issue because it was conclusory. An examination of the
affidavit shows that Bannen supported his conclusions with specific facts from both
his experience as an attorney in general and his experience with this case
specifically. Accordingly, we conclude Del Bosque’s argument is without merit.
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See Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.—Dallas 2004, pet. denied)
(conclusory statement is one that does not provide underlying facts to support
conclusion); BBX Operating, LLC v. Am. Fluorite, Inc., No 09-19-00278-CV, 2021
WL 3196514, *22 (Tex. App.—Beaumont July 29, 2021, pet. filed) (mem. op.)
(affidavit based on attorney’s general experience and experience with specific case
sufficient to create fact issue).
The Desios’ request for findings of fact and conclusions of law extended the
deadline for them to file their notice of appeal until ninety days after the judgment
was signed. It is undisputed the Desios filed their notice of appeal within that ninety-
day period. Therefore, we have jurisdiction over this appeal.
II. Award of Trial Attorney’s Fees
In their first issue, the Desios contend the trial court erred in finding all the
legal services provided to Del Bosque up to and through trial of the case were so
intertwined that they could not be segregated. The Desios list multiple issues in the
case that were specific to the First-Floor Lease, including the business-interruption
damages caused by the first-floor lockout, which were irrelevant to the Second-Floor
Leases as Del Bosque had vacated those offices when the claims arose. In their third
and fourth issues, the Desios contend the trial court erred in concluding Del Bosque’s
evidence was sufficient to support the award of attorney’s fees and in awarding him
all the fees he requested.
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Del Bosque responds that his evidence was sufficient to support the award and
the First- and Second-Floor Lease claims “arose from the same set of facts
concerning the [Desios’] breach of the two leases and the proof needed to prevail on
either claim lies within that same set of facts.” But, merely because the facts
concerning the different claims are intertwined does not mean the party seeking fees
does not have to segregate the fees for the recoverable claims from the unrecoverable
claims. KBDIC Invs., LLC v. Zuru Toys Inc., No 05-19-00159-CV, 2020 WL
5988014, *17 (Tex. App.—Dallas Oct. 9, 2020, pet. denied) (mem. op.). “[I]t is
only when discrete legal services advance both a recoverable and unrecoverable
claim that they are so intertwined that they need not be segregated.” Tony Gullo
Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313–14 (Tex. 2006).
Here, Del Bosque’s attorney summarily opined that 95% of all the legal work
performed “was time spent prosecuting and defending both the First Floor and
Second Floor leases,” thereby suggesting that only 5% of the work was attributable
solely to the First-Floor Lease claims. Song made no attempt, however, to explain
how the discrete legal services performed by him and his staff advanced both claims.
Nor did he discuss how much time was spent on any of the particular services and
by whom. Although attorneys may testify that a certain percentage of their time
would have been necessary even in the absence of the unrecoverable claim, general,
conclusory testimony devoid of substance will not support a fee award. See El Apple
I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012)
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Sufficient evidence of attorney’s fees includes, at a minimum, evidence of (1)
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. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469,
498 (Tex. 2019). Generalities about tasks performed provide insufficient
information for the fact finder to meaningfully review whether the tasks and hours
were reasonable and necessary. Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014).
Similarly, without information about the specific tasks performed and the hours
spent on them, there is no way to determine whether the fees were appropriately
segregated. See Jones-Hospod v. Maples, No. 03-20-00407-CV, 2021 WL 3883884,
*7–8 (Tex. App.—Austin Aug. 31, 2021, no pet.) (mem. op.). Simply listing the
categories of tasks and the aggregate hours spent on the case is insufficient. Long,
442 S.W.3d at 255.
Here, Del Bosque’s evidence provided nothing more than generalities about
the tasks performed and the total time spent by counsel and staff. This evidence is
so vague as to render it impossible to assess the reasonableness and necessity of the
work for which recovery was sought or to determine whether the fees were
appropriately segregated. Id. Because of this, we sustain the Desios’ first, third, and
fourth issues.
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III. Award of Appellate Attorney’s Fees
In their second issue, the Desios challenge the trial court’s award of the full
$30,000 in appellate attorney’s fees to Del Bosque. The Desios contend the award
was improper because Del Bosque prevailed on only a portion of the prior appeal
and he failed to segregate the fees attributable to the claims on which he prevailed
from the fees attributable to the claims on which he did not.
An appellee is entitled to appellate attorney’s fees only if the appellant is
unsuccessful on appeal. Smith v. Smith, 757 S.W.2d 422, 426 (Tex. App.—Dallas
1988, writ denied). If the appellant is partially successful, the appellee may recover
fees only for work performed on the issues where the appellant was unsuccessful.
Chevron Phillips Chem. Co. L.P. v. Kingwood Crossroads, L.P., No. 09-14-00316-
CV, 2017 WL 4182292, *10 (Tex. App.—Beaumont Sept. 21, 2017, no pet.) (mem.
op.). On remand, the appellee must segregate the recoverable appellate attorney’s
fees from the unrecoverable attorney’s fees. Id.Del Bosque argues he was not required to segregate his appellate attorney’s
fees because the Desios did not prevail on any of their appellate issues. This
contention is clearly contradicted by the record and our prior opinion in this case.
See Desio, 2019 WL 6974762, at *7. Because Del Bosque was not awarded damages
at trial, one of the Desios’ main arguments on appeal was that Del Bosque was not
entitled to recover his attorney’s fees. We agreed with the Desios that the First-Floor
Lease did not provide a basis for Del Bosque to recover his attorney’s fees and
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sustained the Desios’ third and fourth issues in part. Id. Because the Desios’
successfully appealed a portion of the attorney’s fees award, Del Bosque is not
entitled to appellate attorney’s fees for his defense of that portion. See Smith, 757
S.W.2d at 426. We sustain the Desios’ second issue.
Conclusion
Based on the foregoing, we reverse the trial court’s amended final judgment
in part and remand for the trial court to determine, consistent with this opinion and
our prior opinion in this case, the amount of reasonable and necessary attorney’s fees
to be awarded to appellee. In all other respects, we affirm the trial court’s judgment.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
210022F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CHRISTINE FLORES DESIO On Appeal from the 14th Judicial
D/B/A PROFESSIONAL CENTER District Court, Dallas County, Texas
OF GRAND PRAIRIE AND Trial Court Cause No. DC-17-04408.
FRANCIS ANTHONY DESIO, JR. Opinion delivered by Justice
A/K/A FRANK DESIO, Reichek. Justices Nowell and Carlyle
INDIVIDUALLY, Appellants participating.
No. 05-21-00022-CV V.
MIKE DEL BOSQUE D/B/A
INJURY AND REHAB CENTER IN
GRAND PRAIRIE, Appellee
In accordance with this Court’s opinion of this date, the amended judgment
of the trial court is REVERSED IN PART and this cause is REMANDED to the
trial court for further proceedings to determine the reasonable and necessary
attorney’s fees to be awarded to MIKE DEL BOSQUE D/B/A INJURY AND
REHAB CENTER IN GRAND PRAIRIE consistent with this opinion and our
prior opinion in this case. In all other respects, we AFFIRM the trial court’s
judgment.
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It is ORDERED that appellant CHRISTINE FLORES DESIO D/B/A
PROFESSIONAL CENTER OF GRAND PRAIRIE AND FRANCIS ANTHONY
DESIO, JR. A/K/A FRANK DESIO, INDIVIDUALLY recover their costs of this
appeal from appellee MIKE DEL BOSQUE D/B/A INJURY AND REHAB
CENTER IN GRAND PRAIRIE.
Judgment entered February 18, 2022
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