J. Bennett White, P.C., Appellant/Cross-Appellee v. Wendell Reeder, Appellee/Cross-Appellant ( 2018 )

NO. 12-17-00026-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
J. BENNETT WHITE, P.C., § APPEAL FROM THE 402ND
APPELLANT/CROSS-APPELLEE
V. § JUDICIAL DISTRICT COURT
WENDELL REEDER,
APPELLEE/CROSS-APPELLANT § WOOD COUNTY, TEXAS
MEMORANDUM OPINION
This is the appeal of a contract dispute between a law firm, J. Bennett White, P.C., and its
client, Wendell Reeder. The judgment awards contract damages to White P.C. but the firm
complains of the trial court’s refusal to award it attorney’s fees in conformance with jury
findings. Reeder attacks the sufficiency of the evidence to support the damage award and
contends the trial court committed charge error by failing to submit a question regarding
unconscionability of the contract terms. We modify the judgment to reinstate the jury’s award of
attorney’s fees and affirm as modified.
BACKGROUND
Reeder owns a cattle ranch and several businesses, including Clarksville Oil and Gas.
Attorney J. Bennett White did collections work for Clarksville Oil and Gas beginning in the late
1990’s or early 2000’s, while he worked for another law firm. Later, after White formed White
P.C., Clarksville Oil and Gas became White P.C.’s client. In 2008, White P.C. also began
representing Reeder personally on a few matters. All fee agreements between White P.C. and
Reeder, including those for Clarksville Oil and Gas, were oral, based on an hourly fee, and
required Reeder to pay as billed, usually monthly. Although Reeder continued to pay for the
Clarksville Oil and Gas legal work, he fell behind on payments for the personal work and
eventually stopped paying.
White P.C. sued Reeder, alleging breach of seven distinct contracts, asserting as damages
the balances it deemed Reeder still owed on seven different matters. Those matters are as
follows: (1) the 2008 appeal of a Wood County judgment to the Twelfth Court of Appeals,
referred to as the Fry appeal,1 (2) the 2010 appeal of that Wood County judgment to the Texas
Supreme Court, referred to as the Fry supreme court appeal, 2 (3) a suit filed in 2011 to prevent
the Fry parties from collecting on the Wood County judgment, (4) legal services in connection
with Reeder’s involvement as an oil and gas operator of the Forest Hill/Harris Sand Unit, (5) the
2011 declaratory judgment action brought against Reeder by his insurance carrier, Jamestown
Insurance Company, (6) the 2012 appeal of the Jamestown Insurance declaratory judgment
proceeding,3 and (7) “legal representation in matters of a general nature” from 2008 through
April 2015. White P.C. also requested attorney’s fees for amounts expended in this breach of
contract suit.
The jury determined that Reeder failed to perform his obligations under the terms of each
of the seven agreements for legal services. However, the jury awarded damages to White P.C.
for only three of the accounts. For the account involving the 2011 suit to prevent collection of
the Wood County judgment, it awarded $14,500, for the Fry appeal it awarded $91,210, and for
the Jamestown Insurance trial it awarded $24,011. The jury also awarded White P.C. $30,000 in
attorney’s fees for trial of this lawsuit.
Reeder filed a motion to disregard jury findings, complaining of the jury’s damage
awards. The trial court rendered judgment incorporating the jury’s three damage awards,
ordering that White P.C. recover from Reeder damages in the amount of $129,721. The court
did not include the $30,000 award for attorney’s fees in the final judgment. This appeal ensued,
with both sides complaining of the proceedings and judgment of the court below.
1
Reeder v. Wood Cty. Energy L.L.C., 320 S.W.3d 433 (Tex. App.−Tyler 2010) (op. on reh’g), rev’d, 395
S.W.3d 789 (Tex. 2012).
2
Reeder v. Wood Cty. Energy, L.L.C., 395 S.W.3d 789 (Tex. 2012)
3
Jamestown Ins. Co. v. Wendell Reeder, d/b/a Clarksville Oil & Gas Co., Ltd., 508 Fed. Appx. 306 (5th
Cir. 2013).
2
JURY CHARGE
In his second issue, Reeder contends the trial court erred in failing to include a jury
question in the charge asking if the contract terms were unconscionable and instructing the jury
on the definition of the term “unconscionable.” He complains that White P.C. charged excessive
fees and unilaterally tacked on punitive, high interest charges after the parties entered into the
contract.
Applicable Law
We review the trial court’s decisions on the jury charge for an abuse of discretion. Sw.
Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016). A party is entitled to
submission of a jury question, instruction, or definition if the pleadings and evidence raise a fact
issue. TEX. R. CIV. P. 278; Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002).
A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or an
unconscionable fee. TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.04(a), reprinted in TEX.
GOV’T CODE ANN., tit. 2, subtit. G, app. A (West 2013) (TEX. STATE BAR R. art. X, § 9). A fee is
unconscionable if a competent lawyer could not form a reasonable belief that the fee is
reasonable. Id. Whether a particular fee amount charged by the attorney is unconscionable
under all relevant circumstances of the representation is an issue for the fact finder. Hoover
Slovacek LLP v. Walton, 206 S.W.3d 557, 561 (Tex. 2006); Celmer v. McGarry, 412 S.W.3d
691, 706 (Tex. App.−Dallas 2013, pet. denied). Unconscionability has no single definition and
must be determined on a case by case basis in light of a variety of factors. Lee v. Daniels &
Daniels, 264 S.W.3d 273, 280 (Tex. App.−San Antonio 2008, pet. denied) (op. on reh’g). To be
held unconscionable, a term of the contract must be so extreme as to shock the conscience.
Besteman v. Pitcock, 272 S.W.3d 777, 789 (Tex. App.−Texarkana 2008, no pet.); Ski River
Devel., Inc. v. McCalla, 167 S.W.3d 121, 136 (Tex. App.−Waco 2005, pet. denied).
Analysis
The terms of the original oral agreement are simple. Reeder agreed to pay an hourly fee
in exchange for legal work done by White P.C., and he would pay his bill when he received it.
The record shows that Reeder is an experienced businessman who not only was familiar with the
attorney-client relationship, but had worked with White P.C. for a number of years. Nothing
about the original terms of the contract are shocking. See Besteman, 272 S.W.3d at 789.
3
The oral agreement was later changed by written notice of White P.C.’s imposition of
interest on unpaid balances. The record includes a copy of the letter sent to Reeder explaining
that White P.C. would begin charging interest in the near future. Additionally, beginning with
the May 20, 2012 bill, each bill included the statement: “All past due balances shall be charged
interest at the rate of 12% per annum, compounded monthly.” The June 2012 bill, and every bill
thereafter, included interest in the itemized charges. Reeder made sporadic payments after
receiving notice of the new term, including a large payment in February 2015 in response to bills
that clearly stated that interest was being charged. White P.C. continued to do legal work on
Reeder’s behalf until November 2014. By his actions, Reeder accepted the change. See Price
Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341, 349-50 (Tex. App.−Houston [14th Dist.]
2001, pet. denied) (held that notice and acceptance of a change in parties’ agreement constitutes
modification).
The fact that a bargain is a hard one does not entitle a party to be relieved from it if he
assumed it fairly and voluntarily. See In re Smith, 115 S.W.3d 126, 135 (Tex. App.−Texarkana
2003, pet. denied). We conclude that the record does not raise a fact question on whether the
contract terms were unconscionable. Therefore, Reeder was not entitled to a jury question
regarding unconscionability. See Williams, 85 S.W.3d at 166. The trial court did not abuse its
discretion in refusing Reeder’s request to include a question on unconscionability in the jury
charge. See Sw. Energy Prod. Co., 491 S.W.3d at 727. We overrule Reeder’s second issue.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Reeder asserts that the evidence is insufficient to support the damage
award because White P.C. presented no expert testimony. Reeder contends that J. Bennett White
did not qualify or present himself as an expert witness before the trier of fact and therefore
testified only as a fact witness. Further, Reeder asserts that the evidence is insufficient to prove
White P.C.’s fees were reasonable and necessary. Reeder complains that J. Bennett White’s
testimony was conclusory while the expert presented by Reeder provided probative testimony
that some of White P.C.’s charges were excessive.
Standard of Review
We review the amount awarded as attorney’s fees under legal and factual sufficiency
standards. Bocquet v. Herring, 972 S.W.2d 19, 22 (Tex. 1998) (Baker, J., dissenting). We
4
credit favorable evidence if reasonable jurors could, viewing the evidence in a light that tends to
support the disputed finding, and disregarding evidence and inferences to the contrary unless
reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). If
more than a scintilla of evidence supports the challenged finding, the legal sufficiency challenge
fails. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (per curiam). In
reviewing a challenge to the factual sufficiency of the evidence, we must consider and weigh all
the evidence and should set aside the judgment only if it is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986) (per curiam).
The jury is the sole judge of the witnesses’ credibility; it may choose to believe one
witness over another. City of Keller, 168 S.W.3d at 819-20. We must assume that jurors
resolved all conflicts in accordance with their verdict if reasonable human beings could do so.
Id.
Applicable Law
The prevailing party in a breach of contract case is entitled to attorney’s fees. TEX. CIV.
PRAC. & REM. CODE ANN. § 38.001 (West 2015); Jackson Law Office, P.C. v. Chappell, 37
S.W.3d 15, 23 (Tex. App.−Tyler 2000, pet. denied). An award of attorney’s fees must be
supported by evidence that the fees are reasonable and necessary. See Stewart Title Guar. Co. v.
Sterling, 822 S.W.2d 1, 10 (Tex. 1991).
The issue of the reasonableness and necessity of attorney’s fees requires expert
testimony. Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 830
(Tex. App.−Dallas 2014, no pet.). Testimony by an attorney representing a party in a suit
concerning an award of attorney’s fees is considered expert testimony. Gulf Paving Co. v.
Lofstedt, 188 S.W.2d 155, 161 (Tex. 1945); Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714
S.W.2d 144, 148 (Tex. App.−Houston [1st Dist.] 1986, no pet.). Evidence in support of
attorney’s fees must contain the attorney’s qualifications, his opinion regarding reasonable
attorney’s fees, and the basis for his opinion. See Basin Credit Consultants, Inc. v. Obregon, 2
S.W.3d 372, 373 (Tex. App.−San Antonio 1999, pet. denied). When an attorney’s testimony
contains this necessary information, it constitutes expert opinion testimony and can sufficiently
establish reasonable attorney’s fees. See Enell Corp. v. Longoria, 834 S.W.2d 132, 135 (Tex.
5
App.−San Antonio 1992, writ denied) (op. on reh’g); Owen Elec. Supply, Inc. v. Brite Day
Constr., Inc., 821 S.W.2d 283, 288 (Tex. App.−Houston [1st Dist.] 1991, writ denied).
An attorney’s testimony about the reasonableness of his own fees is not like other expert
witness testimony. Garcia v. Gomez, 319 S.W.3d 638, 641 (Tex. 2010). Although rooted in the
attorney’s experience and expertise, it also consists of the attorney’s personal knowledge about
the underlying work and its particular value to the client. Id. The attorney’s testimony is not
objectionable as merely conclusory because the opposing party, or that party’s attorney, likewise
has some knowledge of the time and effort involved and if the matter is truly in dispute, may
effectively question the attorney regarding the reasonableness of his fee. Id.
Factors to be considered in determining the reasonableness of attorney’s fees include:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required
to perform the legal service properly;
(2) the likelihood, if apparent to the client, 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 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.
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.04(b); Arthur Andersen & Co. v. Perry Equip.
Corp., 945 S.W.2d 812, 818 (Tex. 1997). A reasonable fee is one that is not excessive or
extreme, but rather moderate or fair. Garcia, 319 S.W.3d at 642.
Analysis
John Bennett White testified that he graduated from law school in 1985 and practiced
civil law for over thirty years. He described his work as dispute resolution. He handles
commercial disputes, financial losses, collections, bankruptcies, employment issues, property
issues, and contracts. He testified that he has “litigated a number of oil and gas cases” and “done
a lot of appeals.” He explained that he “know[s] enough oil and gas law to know about the
things [he] wanted to raise” in the Fry appeal. He stated that he has “a pretty good understanding
of overrides and royalties,” he “worked for an oilman in revenue entry accounting,” he worked
“AF, refunds,” and is “pretty familiar with oil and gas accounting and transaction work.”
6
He began representing Reeder’s company, Clarksville Oil and Gas, in the late 1990’s or
early 2000’s. White P.C. began working on the Fry appeal in June 2008. That case involved
multiple parties, multiple issues, large sums of damages assessed by the jury, and had a large,
expensive record. After initial briefing and the resulting opinion by the court of appeals, White
P.C. filed a motion for rehearing. Additionally, in conjunction with the Fry appeal, the firm
pursued a writ of supersedeas and fought a writ of execution in an attempt to protect Reeder’s
property from seizure. White explained that, although Reeder hired attorney Skip Watson to
represent him before the supreme court, White did some work on the supreme court appeal of the
Fry case so that Watson, who charged more, would not have to do it, ultimately saving his client
money. White opined that he played a part in the supreme court win, Watson relied on White,
and Reeder knew this fact. Additionally, during the course of the Fry appeals, White P.C. helped
Reeder defend against Railroad Commission penalties in the Forest Hill/Harris Sand Unit matter.
White explained that he and Reeder had an oral fee agreement. His hourly fee ranged
from $225 to $265 over the course of White P.C.’s representation of Reeder. White P.C. sent
Reeder monthly bills detailing the work done on each matter, identifying the task, the person
completing the task, the rate basis, time spent, rate, and amount charged. White acknowledged
that Reeder told him any amounts White collected on behalf of Reeder would be used to bring
White’s fees current. However, he stated that there was never an agreement that he would get
paid only from Clarksville accounts he collected. White stated the amounts due on each of the
seven matters and stated that the work was all reasonably charged for work that was necessary
for Reeder’s representation.
White, an interested expert witness, presented competent opinion evidence. See Gulf
Paving Co., 188 S.W.2d at 161. White’s testimony shows that he is qualified by his expertise,
personal knowledge of the work performed, and its value to his client to testify as to what
reasonable attorney’s fees would be in the cases he worked for Reeder. See Garcia, 319 S.W.3d
at 641. White testified as to the facts and circumstances surrounding the services rendered, as
well as the nature, character, and extent of those services. See Bryant v. Browning, 48 S.W.2d
798, 799 (Tex. Civ. App.−Austin 1932, writ dism’d). White P.C. presented more than a scintilla
of evidence to support the damages awarded by the jury. Therefore, Reeder’s legal sufficiency
challenge fails. See Canchola, 121 S.W.3d at 739.
7
Reeder testified that he does not believe he actually owes all the fees that White P.C.
billed. He also said he owes the amount billed but does not have to pay it until he collects
unpaid debts owed to him. He complained that he was charged for several people reviewing the
files and researching. Time was spent creating a database in the Forest Hill/Harris Sand Unit
matter but he saw no work product or work from it. He opined that he does not owe for all the
work White did that “never came to nothing.” He said some of the charges are redundant and
some are not reasonable. Reeder testified that he paid White $737,000 and he paid Watson, who
charges $500 an hour, $147,000.
Reeder presented expert testimony from attorney Michael Gazette, who charged Reeder
$275 an hour. Gazette testified that he saw a pattern of billing by legal assistants for clerical
work. He deemed that practice to be unreasonable. White testified in response to this testimony,
suggesting that this complaint could be cured by subtracting $5,734.50 from the total White P.C.
requested.
Gazette further testified that the amount of time charged for the reply brief in the
Jamestown appeal was excessive by twenty hours, and the hours charged for the motion to
reconsider in that matter was excessive by twelve to fifteen hours. The jury did not award any
damages for the Jamestown appeal.
Gazette also testified that an excessive and unreasonable amount of time was charged in
the Fry appeal, asserting that 150 to 175 hours would have been reasonable. The jury was
entitled to disregard Gazette’s opinion that the Fry appeal should have been completed in 175
hours. See City of Keller, 168 S.W.3d at 820.
White P.C., and White, had a lengthy professional relationship with Reeder. The
evidence supports a determination that White’s hourly rate is reasonable. The work done by
White P.C. involved numerous related but distinct and complex legal matters involving a
substantial amount of money at risk that necessarily required a great deal of time. Additionally,
amounts billed included charges for work done by legal assistants as well as court costs, as
shown by the detailed monthly bills. Nonetheless, the jury awarded White P.C. zero in damages
for the General matters, the Forest Hill/Harris Sand Unit services, Fry supreme court appeal, and
Jamestown Insurance Company appeal. Further, the jury awarded less than requested in the
2011 suit to prevent collection, the Fry appeal, and the Jamestown trial matters. Considering all
seven matters, the jury awarded White P.C. $82,876.10 less than the $212,597.10 it requested.
8
After reviewing all the evidence, we conclude that the evidence of the reasonableness and
necessity of the damage awards is not so contrary to the overwhelming weight of the evidence as
to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176. We overrule Reeder’s first issue.
ATTORNEY’S FEES
In its sole issue on appeal, White P.C. contends that the trial court erred in granting
Reeder’s motion to disregard the jury’s answer to question three, providing that White P.C. is
entitled to $30,000 in attorney’s fees for representation through trial and the completion of
proceedings in the trial court. It argues that the award is supported by sufficient evidence, the
evidence does not conclusively establish a fact contrary to the jury’s finding, and, because
attorney’s fees are recoverable for breach of contract, White P.C. was not required to segregate
its attorney’s fees.
Standard of Review
We review a trial court’s decision to grant or deny a motion to disregard jury findings as
a legal sufficiency challenge. See City of Keller, 168 S.W.3d at 823; Davis v. Nat’l Lloyds Ins.
Co., 484 S.W.3d 459, 467 (Tex. App.−Houston [1st Dist.] 2015, pet. filed). Thus, a trial court
can disregard a jury’s finding when there is a complete absence of evidence of a vital fact, the
court is barred by rules of law or evidence from giving weight to the only evidence offered to
prove a vital fact, the evidence offered to prove a vital fact is no more than a mere scintilla, or
the evidence establishes conclusively the opposite of a vital fact. City of Keller, 168 S.W.3d at
810. In our review, we credit favorable evidence if reasonable jurors could and disregard
contrary evidence unless reasonable jurors could not. Id. at 827.
Applicable Law
A trial court may disregard a jury’s finding only when the answer has no support in the
evidence or the question is immaterial. TEX. R. CIV. P. 301; Spencer v. Eagle Star Ins. Co. of
Am., 876 S.W.2d 154, 157 (Tex. 1994). A question is immaterial when it should not have been
submitted, or when it was properly submitted but has been rendered immaterial by other
findings. Id. A question which calls for a finding beyond the province of the jury, such as a
question of law, may be deemed immaterial. Id. Where some evidence supports the disregarded
finding, the reviewing court ordinarily must reverse and render judgment. Thedford v. Mo. Pac.
R.R. Co., 929 S.W.2d 39, 45 (Tex. App.−Corpus Christi 1996, writ denied).
9
In order to obtain an award of attorney’s fees, Texas Civil Practice and Remedies Code
Chapter 38 requires that a claimant both (1) prevail on a cause of action for which attorney’s fees
are awarded, and (2) recover damages. TEX. CIV. PRAC. & REM. CODE ANN. § 38.001; MBM
Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 666 (Tex. 2009); Green Int’l,
Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). “A plaintiff must prove compensable injury and
secure an enforceable judgment in the form of damages or equitable relief.” Intercontinental
Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 652 (Tex. 2009). “A zero on
damages necessarily zeroes out ‘prevailing party’ status.” Id. at 655-56. When a lawsuit
involves multiple claims, the proponent has a duty to segregate non-recoverable attorney’s fees
from recoverable attorney’s fees. Stewart Title Guar. Co., 822 S.W.2d at 11.
Analysis
After White P.C. rested its case, Reeder moved for a directed verdict asserting that White
P.C. did not have a case to take to the jury, arguing in part that White P.C. was required to
“segregate out from the attorney’s fees that they are seeking in this case as a result of their
collection efforts.” This motion was denied. Later, at the charge conference, Reeder explained
his position, asserting that the law requires White P.C. to segregate fees and “[t]he fact that
should have been segregated goes to the jury regardless of what their answer may be in and of
itself.” Referring to the seven different claims, Reeder stated that “for them to recover any
attorney’s fees, they have to claim each one independently.” He then stated his specific
objection as follows:
Since the potential not to recover is there on any of these seven or to recover at a
lower percentage, a lesser amount, I don’t think it’s as simple as just saying,
well, they only recovered on three of the seven. We are only going to allow
seven. The fact is they have not segregated them. There is absolutely no
testimony of segregation. We believe it is error and we are – and we object to
there being any submission of attorney’s fees in this particular case in regards to
the recovery efforts and the fees sought that were attorney fees to recover on the
balances that the Plaintiff claim they were owed.
The court responded:
As to the attorney’s fees, I am overruling the objection on that as well. I am
going to go ahead and submit it for the reasons we discussed earlier, that in the
event that the jury returns liability and found liability and damages in all seven
10
files, then the Court thinks that the whole issue of a segregation problem
becomes moot at that point, but at any rate, we can discuss that after the fact.
In response to Question No. 1 of the jury charge, the jury answered “yes” as to each
cause of action, finding that Reeder failed to perform his obligations under the terms of the
parties’ agreement “[w]ith regard to each billing account.” However, the jury determined that
White P.C. is not entitled to damages for breach of the contracts involved in the Forest
Hill/Harris Sand Unit matter, Fry supreme court appeal, Jamestown Insurance Company appeal,
and the general category.
As submitted, Jury Question No. 3 asked:
What is a reasonable fee for the necessary services of J. Bennett White, P.C.’s
attorneys stated in dollars and cents. [In your answer, do not include any
amount for legal services rendered in this case where the services were provided
solely in conjunction with a claim where you answered “No” in Question No. 1.]
Question No. 3 requested the jury to find White P.C.’s attorney’s fees for the entire
lawsuit, rather than separately allocating the fees to each of the seven causes of action. In
response to Question 3, the jury awarded White P.C. $30,000 in attorney’s fees for representation
through trial and the completion of proceedings in the trial court.
After the jury returned its verdict, Reeder asserted a motion to disregard the jury findings.
Pertinent to White P.C.’s issue on appeal, Reeder contended that the trial court should disregard
the jury’s answer to Question No. 3. He argued that White P.C. failed to segregate attorney’s
fees between the seven causes of action pled. Noting that the jury awarded damages on just three
of the seven pleaded claims, Reeder asserted that White P.C. is not entitled to attorney’s fees for
the four unsuccessful claims.
Reeder’s post-verdict complaint amounts to a challenge to the charge as given. See Tubb
v. Bartlett, 862 S.W.2d 740, 748 (Tex. App.−El Paso 1993, writ denied). A motion to disregard
jury findings is not the proper method for preserving error regarding the submission of jury
questions. Id.
A careful reading of Reeder’s objection made at the charge conference reveals that he
opined that segregation of fees between each of the seven matters was necessary. However, his
precise pre-charge objection, relying on the absence of evidence of segregation of fees, was that
Question No. 3 should not be submitted to the jury at all. Objections to the court’s charge must
11
be made before the court has submitted the charge to the jury. Id. Reeder did not object to the
broad submission of the issue and therefore waived the complaint that White P.C. is not entitled
to attorney’s fees due to its failure to segregate fees between the seven causes of action.4 Home
Sav. Ass’n v. Guerra, 733 S.W.2d 134, 137 (Tex. 1987); Aero Energy, Inc. v. Circle C Drilling
Co., 699 S.W.2d 821, 823 (Tex. 1985).
In the absence of a valid objection to the jury question, the trial court may disregard the
jury finding only if it is unsupported by the evidence or is legally immaterial. Green Int’l, Inc.,
951 S.W.2d at 389-90. Thus, where the complaint is a pure legal question that does not affect
the jury’s role as a fact finder, a motion to disregard jury findings would be appropriate and
sufficient to preserve error. See Spencer, 876 S.W.2d at 157. However, the determination of the
amount of reasonable and necessary attorney’s fees is a question for the fact finder. Leggett v.
Brinson, 817 S.W.2d 154, 157 (Tex. App.−El Paso 1991, no writ). Accordingly, the jury’s
finding in response to Question No. 3 did not involve a pure legal question. See Spencer, 876
S.W.2d at 157; see also Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (per
curiam) (held that nonavailability of attorney’s fees is appropriately raised post-verdict while the
amount of reasonable fees is a jury question).
We next consider whether the jury finding is supported by the evidence. White P.C.
brought this suit as an attempt to collect on seven distinct breach of contract causes of action.
White testified as to the total amount of fees the firm incurred to bring this lawsuit, explaining
that $56,000 would be a reasonable fee. White P.C. admitted Exhibit 93, entitled “History Bill,”
into evidence. It is further identified as Matter No. 15-102, J. Bennett White, P.C. (v. Reeder,
Wendell). This document details the work done, time spent, and charges assessed by the lawyers
and legal assistants between April 7, 2015 and July 11, 2016. The total charges for that time
period are $47,933.64. This constitutes some evidence of attorney’s fees incurred in the present
lawsuit, supporting the jury finding awarding attorney’s fees. See City of Keller, 168 S.W.3d at
810; see also Stewart Title Guar. Co., 822 S.W.2d at 12 (held that evidence of unsegregated
attorney’s fees is more than a scintilla of evidence of segregated attorney’s fees).
4
The issue may also be preserved by objection during testimony offered in support of attorney’s fees. In
re M.G.N., 491 S.W.3d 386, 410 (Tex. App.−San Antonio 2016, pet. denied) (op. on reh’g). Reeder did not assert
an objection to the failure to segregate fees during White’s testimony on attorney’s fees.
12
Because the jury finding is supported by the evidence and is not legally immaterial, any
error in the court’s failure to segregate attorney’s fees in the jury question and instructions was
waived and cannot serve as a basis for barring the recovery of attorney’s fees. Green Int’l, Inc.,
951 S.W.2d at 390. Therefore, the trial court erred in granting Reeder’s motion to disregard the
jury’s answer awarding attorney’s fees to White P.C. for the trial of this case. See id. Because
some evidence supports the disregarded finding, we render judgment on the jury’s verdict. See
Thedford, 929 S.W.2d at 45. We sustain White P.C.’s sole issue.
DISPOSITION
Because the trial court erred in granting Reeder’s motion to disregard jury findings, we
modify the judgment to reinstate the disregarded jury finding and render judgment that White
P.C. is awarded $30,000 in attorney’s fees. The trial court’s judgment is affirmed as modified.
BRIAN HOYLE
Justice
Opinion delivered February 14, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
13
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
FEBRUARY 14, 2018
NO. 12-17-00026-CV
J. BENNETT WHITE, P.C.,
Appellant/Cross-Appellee
V.
WENDELL REEDER,
Appellee/Cross-Appellant
Appeal from the 402nd District Court
of Wood County, Texas (Tr.Ct.No. 2015-184)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein; and the same being considered, it is the opinion of this court that there was error in the
judgment of the court below.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the trial court is modified to provide that J. Bennett White, P.C. have and recover attorney’s fees
from Wendell Reeder in the amount of $30,000.00.
It is further ORDERED, ADJUDGED and DECREED that, as modified, the
judgment of the court below be affirmed. It is further ORDERED that all costs of this appeal
are hereby assessed against Appellee/Cross-Appellant WENDELL REEDER, for which
execution may issue, and that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.