woody-k-lesikar-as-trustee-of-the-woodrow-k-lesikar-family-trust-as ( 2012 )

Affirmed and Memorandum Opinion filed August 30, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-01016-CV
WOODY K. LESIKAR, AS TRUSTEE OF THE WOODROW K. LESIKAR
FAMILY TRUST, AS TRUSTEE OF THE WOODY K. LESIKAR SPECIAL
TRUST, AND AS EXECUTOR OF THE WOODROW V. LESIKAR
ESTATE, Appellant
V.
CAROLYN ANN LESIKAR MOON, INDIVIDUALLY AND AS TRUSTEE OF
THE CAROLYN ANN LESIKAR MOON SPECIAL TRUST, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 49786
MEMORANDUM OPINION
In this appeal, we consider challenges to the trial court’s award of attorney’s fees
on remand in a dispute between siblings related to a family trust and their deceased
father’s estate. We affirm the trial court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Carolyn Ann Lesikar Moon, individually and as trustee of the Carolyn Ann
Lesikar Moon Special Trust, filed suit in 2003 against her brother Woody K. Lesikar,
individually and in his capacities as trustee for both the Woodrow V. Lesikar Family
Trust (“Family Trust”) and the Woody K. Lesikar Special Trust, and as executor of the
estate of Woodrow V. Lesikar, their deceased father. Some of Moon’s claims, involving
the sale of shares of stock in West Houston Airport Corporation (“Airport Stock”), were
severed and subsequently dismissed on summary judgment; Moon unsuccessfully
appealed those claims.1 Moon proceeded to trial on her remaining claims, and, at some
point, Moon dismissed her tort claims against Lesikar individually. In a final judgment
dated September 13, 2005 (“2005 Judgment”), the trial court specified which Trust assets
were to be distributed to Lesikar’s and Moon’s special trusts and which assets were to
remain in the Family Trust for distribution to other beneficiaries. The trial court also
awarded Moon attorney’s fees under the Declaratory Judgments Act and the Trust Code.
On Lesikar’s appeal of the 2005 Judgment, this court reversed the portion of the
judgment awarding Moon attorney’s fees under the Declaratory Judgments Act and the
Trust Code and remanded to the trial court for further proceedings consistent with this
court’s opinion.2 On remand, the parties attempted to participate in discovery, resulting
in a dispute between the parties and a subsequent mandamus proceeding as to the scope
of the issues on remand.3 The jury found $375,000 to be a reasonable and necessary fee
for services rendered by Moon’s attorney. The trial court determined that the amount of
1
See Moon v. Lesikar, 230 S.W.3d 800 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
2
See Lesikar v. Moon, 237 S.W.3d 361, 378–79 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
3
See In re Lesikar, 285 S.W.3d 577 (Tex. App.—Houston [14th Dist.] 2009, original proceeding). This
court stated that “the scope of the trial on remand is limited to the determination of the amount of
attorneys’ fees that (a) were reasonable and necessary to the initial preparation and trial of [Moon]’s
claims under the Declaratory Judgments Act and the Texas Trust Code, and (b) it is equitable and just to
award.” Id. at 588.
2
reasonable and necessary attorney’s fees found by the jury was equitable and just and
should be awarded to Moon. The trial court denied Lesikar’s motion for judgment
notwithstanding the verdict and rendered judgment that Moon recover $375,000 in
attorney’s fees plus post-judgment interest. The trial court also denied Lesikar’s motion
for new trial.
II. ISSUES AND ANALYSIS
A. Is the evidence legally and factually sufficient to support the attorney’s fees
award?
In his eighth issue, Lesikar challenges the legal sufficiency of the evidence to
support the award of attorney’s fees.4 In his ninth and tenth issues, Lesikar challenges
the factual sufficiency of the evidence to support the award. A trial court’s ruling to
grant or deny attorney’s fees under the Declaratory Judgments Act lies within the
discretion of the trial court, and its judgment will not be reversed on appeal absent a clear
showing it abused that discretion. Lesikar v. Moon, 237 S.W.3d 361, 375 (Tex. App.–
Houston [14th Dist.] 2007, pet. denied). The trial court abuses its discretion when it
reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial
error of law. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004);
Lesikar, 237 S.W.3d at 375. A court does not abuse its discretion if some evidence
supports its decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
We consider the legal and factual sufficiency of the evidence as relevant factors
for our consideration in determining whether the trial court abused its discretion.
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Lesikar, 237 S.W.3d
at 375. In reviewing the legal sufficiency of the evidence, we view the evidence in the
light most favorable to the verdict and indulge every reasonable inference that would
support the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We
credit favorable evidence if a reasonable fact finder could, and disregard contrary
4
Because the eighth issue, if sustained, would result in reversal and a rendition of judgment in Lesikar’s
favor, we address this issue first.
3
evidence unless a reasonable fact finder could not. Id. at 827. The evidence is legally
sufficient if it would enable fair minded people to reach the verdict under review. See id.
When reviewing a challenge to the factual sufficiency of the evidence, we
examine the entire record, considering both the evidence in favor of, and contrary to, the
challenged finding. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex.
1998). After considering and weighing all the evidence, we set aside the fact finding
only if it is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. Id. The trier of fact is the sole judge of the credibility of the witnesses
and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61
S.W.3d 599, 615–16 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). We may not
substitute our own judgment for that of the trier of fact, even if we would reach a
different answer on the evidence. Maritime Overseas Corp., 971 S.W.2d at 407. The
amount of evidence necessary to affirm a judgment is far less than that necessary to
reverse a judgment. Pascouet, 61 S.W.3d at 616.
Whether attorney’s fees are reasonable and necessary are factual issues. Lesikar,
237 S.W.3d at 375. The following eight factors may be considered in determining the
reasonableness and necessity of attorney’s fees: (1) the time and labor involved, the
novelty and difficulty of the questions involved, and the skill required to perform the
legal services properly; (2) the likelihood that the acceptance of the particular
employment will preclude other employment by the lawyer; (3) the fee customarily
charged in the locality for similar legal services; (4) the amount involved and the results
obtained; (5) the time limitations imposed by the client or the circumstances; (6) the
nature and length of the professional relationship with the client; (7) the experience,
reputation, and ability of the lawyer or lawyers performing the services; and (8) whether
the fee is fixed or contingent on results obtained or uncertainty of collection before the
legal services have been rendered. Arthur Anderson & Co v. Perry Equip. Corp., 945
S.W.2d 812, 818 (Tex. 1997); Lesikar, 237 S.W.3d at 376.
4
Attorney Bobbie Bayless testified that she and Moon entered into a contingent-fee
contract in 2003 because Moon had no money or property to pay for hourly services.
Under the agreement, Bayless was entitled to forty percent of the recovery as attorney’s
fees. Bayless has been licensed as an attorney in the State of Texas since 1980. Since
1986, she has been state-board certified in civil trial law and has been nationally certified
since 1988 or 1989. At the time of trial, she had served as an expert witness for
reasonableness of attorney’s fees about twelve times for other cases. According to
Bayless, the type of case at hand is the type of litigation covered by her board
certification.
Bayless asked Brett Wagner, an attorney from a different law firm, to work with
her on preparation of the case. Wagner has been licensed as an attorney in Texas since
1986. He is board certified in personal injury, and a good deal of his practice focuses on
malpractice cases involving fiduciary issues. Wagner’s firm brought in local counsel
Vaughn O. Stewart, who had a contingent fee of ten percent of whatever amount was
recovered. Bayless testified that a reasonable hourly fee for her services in the local area
is $300, which she believed was “middle of the range” for fees for herself, Stewart, and
Wagner. The upper range of hourly fees for a similar matter is $400.
Contrary to Lesikar’s claim that Moon produced “no written billings or
documentary evidence supporting her claims,” the bulk of the evidence presented
stemmed from Bayless’s testimony and Plaintiff’s Exhibit 1, a computer-generated
compilation of Bayless’s time spent on the case from November 26, 2002, to July 31,
2005. Bayless tallied the hours in Plaintiff’s Exhibit 1, arriving at 1,900 hours spent on
the case for her work alone and 2,100 hours with the other attorneys’ or legal assistants’
work. Bayless estimated that twenty percent of the 1,900 figure was spent on issues
related to the claims regarding the Airport Stock. The record reflects that Wagner
estimated he spent 800 hours on the case and that Stewart estimated he spent 120 hours
on the case.
5
Before even filing suit, Bayless began work on the case, collecting documents to
ascertain the contents of the Family Trust. Apparently, Moon’s prior counsel was already
in the midst of disagreements with other parties in obtaining records to the Family Trust.
Bayless noted that information received by Moon’s prior counsel was not consistent with
other documentation related to the Family Trust. Bayless testified that she and Wagner
spent about 100 hours investigating claims before filing suit. According to Bayless, the
work involved prior to filing suit encompassed reviewing real estate records, reviewing
prior probate proceedings and bankruptcy proceedings, reviewing depositions related to
those prior proceedings, and reviewing of the estate tax return filed by Lesikar as
executor of the estate of Woodrow K. Lesikar. Bayless testified that she spent 50 to 75
hours determining claims and remedies, and drafting and filing the pleadings. Bayless
testified that it was complicated to frame the issues because she dealt with venue issues in
two different counties. Ultimately, Moon’s suit consisted of a petition for construction of
the trust, a declaratory judgment, accounting, imposition of a constructive trust,
appointment of a receiver, and injunctive relief. Moon’s claims against Lesikar included
breach of fiduciary duty, conversion, negligence, civil conspiracy, and tortious
interference with inheritance.
After the suit was filed, the parties attempted to gather documents; they engaged in
disputes over what documents should be produced, and there were multiple hearings on
the disputed matters. Bayless spent 200 hours on discovery, which involved sending
requests, gathering responses, responding to objections, and attending hearings. As part
of discovery, Bayless obtained 40,000 pages of documents from Lesikar; Bayless spent
350 hours looking through the discovery materials. Bayless claimed to have worked on
several motions for summary judgment to dispose of some issues, including the Airport
Stock issues, spending 350 hours on summary-judgment motions on the construction of
the Family Trust combined with the motion for summary judgment on the Airport Stock;
those issues were dealt with at different times.
6
Bayless testified that she dealt with the special master for 50 to 75 hours and
provided documentation to the special master, including nine to ten boxes of materials.
Bayless worked on the master’s report for 50 to 75 hours and spent 100 to 150 hours
researching the report. In 2005, Bayless went to trial on the two remaining claims: the
division of the Family Trust assets and attorney’s fees. According to Bayless, trial was
on an issue in the special master’s report involving distribution of the Family Trust
assets, such that without the report, trial would have encompassed more issues. Bayless,
Wagner, and Stewart collectively spent 600 hours on trial preparations and the seven-day
trial.
Bayless segregated her time on the case between the claims and the parties
involved. In the 2005 litigation, there were multiple parties to the case, including
nominal defendants. Moon was only entitled to recover attorney’s fees on remand as to
the initial preparation and trial of Moon’s claims under the Declaratory Judgments Act
and the Texas Trust Code. Bayless did not seek fees on the Airport Stock claims, as to
which Bayless allocated twenty percent of her time spent on the case, nor did Bayless
seek fees regarding Moon’s request for a constructive trust or Moon’s claims of
conversion, civil conspiracy, negligence, and tortious interference with inheritance.
Moon did not pursue these claims after summary judgment was granted. Likewise, no
billed time for work on the Airport Stock claims is included in the estimates from either
Wagner or Stewart. No action was taken on the tort claims alone; those claims were
dismissed at some point and Moon did not seek judgment on the tort claims. According
to Bayless, the timing of the dismissal of the tort claims is not significant in estimating
the hours she spent on the case. Bayless’s work on the injunctive relief paralleled and
overlapped the receivership work.
Bayless testified that reasonable attorney’s fees in the case would be $400,000 for
about 1,300 hours. Bayless stated that she had “lopped off” a good portion of her hours
to account for any duplication of effort by one of Moon’s three attorneys, to account for
7
work done by any attorney or legal assistant at a rate of $300 an hour when a person at a
lesser hourly rate could have done the same job, and to account for some portions of the
case for which attorney’s fees were not recoverable but may have been related to the
work.
In arriving at her estimate, Bayless considered the time and labor involved and the
novelty and difficulty of the legal issues. She described the case as being moderately
complicated, highly contentious, and stressful. In assessing the skill required to perform
the legal services for Moon, Bayless testified that in a highly contentious case, the work
requires a higher skill level in dealing with procedural issues against other board-certified
lawyers. Although the work consumed much of Bayless’s time, the work did not
preclude her acceptance of other clients. Bayless also considered the controversy in the
suit and the results obtained, describing a substantial three-million-dollar estate with
hundreds of thousands of dollars at stake. To the degree that Moon could have posed
difficulties to the attorneys in the case, Bayless testified that any limitations posed by
Moon were not big factors in terms of the time Bayless spent on the case. Bayless
considered any such limitations as a potential factor affecting the reasonableness of the
fees, but any limitations did not matter much in Bayless’s time calculations. Bayless also
considered the fact that she accepted a contingent-fee agreement as a factor in
determining the reasonableness of her fees. According to Bayless, all time spent was
reasonable and necessary to achieve the results in Moon’s favor. Her professional
relationship with Moon started in 2003 and has continued.
Opposing counsel had an opportunity to cross-examine Bayless regarding the fees.
After hearing all the relevant evidence, the jury determined the request for attorney’s fees
was reasonable.
After carefully reviewing the record under the applicable standards of review, we
conclude that the evidence is legally and factually sufficient to support the jury’s finding
as to a reasonable and necessary attorney’s fee. See Oyster Creek Fin. Corp. v. Richwood
8
Invs., II, Inc., 176 S.W.3d 307, 321–22 (Tex. App.—Houston [1st Dist.] 2004, pet.
denied). We further conclude that the trial court did not abuse its discretion in
concluding that awarding these fees to Moon was equitable and just. See Save Our
Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 891–92 (Tex. App.—
Austin 2010, pet. denied). Accordingly, we overrule Lesikar’s eighth, ninth, and tenth
issues.
B. Did the trial court err in denying the motion for judgment
notwithstanding the verdict?
In Lesikar’s seventh issue, he asserts that the trial court should have granted his
motion for judgment notwithstanding the verdict because there is no evidence of any acts
he committed as trustee of the special trust or as executor of his father’s estate that could
serve as a basis for the award of attorney’s fees against him in these capacities.5 We
conclude that the issue of whether Lesikar is liable for attorney’s fees in these two
capacities was not within the scope of remand. See In re Lesikar, 285 S.W.3d at 588;
Lesikar, 237 S.W.3d at 375–79. Therefore, the trial court did not err in rejecting this
argument in Lesikar’s motion for judgment notwithstanding the verdict. Accordingly, we
overrule Lesikar’s seventh issue.6
C. Did the trial court abuse its discretion in making certain discovery rulings?
Under his first issue, Lesikar asserts that the trial court abused its discretion in
making certain discovery rulings. A trial court’s ruling on discovery is reviewed for an
abuse of discretion. Johnson v. Davis, 178 S.W.3d 230, 242 (Tex. App.—Houston [14th
Dist.] 2005, pet. denied). A trial court abuses its discretion when it acts in an arbitrary or
unreasonable manner or without reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
5
Because the seventh issue, if sustained, would result in reversal and a partial rendition of judgment, we
address this issue before the remaining issues.
6
Consequently, we need not and do not address Moon’s first conditional cross-point.
9
Verification of Answers to Interrogatories
First, Lesikar argues that the trial court abused its discretion by denying his
request that Moon verify her answers to interrogatories. See Tex. R. Civ. P. 197.2(d).
We presume, without deciding, that the trial court erred in failing to require Moon to
verify her answers to interrogatories. After reviewing the record, we conclude that, even
under this presumption, this error did not probably cause the rendition of an improper
judgment and did not probably prevent Lesikar from properly presenting the case to this
court. See Tex. R. App. P. 44.1(a); Stern v. State ex rel. Ansel, 869 S.W.2d 614, 628
(Tex. App.—Houston [14th Dist.] 1994, writ denied). Thus, no harm resulted from any
such error.
Denial of Motion to Compel Based on the Attorney-Client Privilege
Lesikar contends the trial court abused its discretion by denying his motion to
compel Moon to produce all emails, all case law reviewed in connection with the case,
long-distance telephone bills and other telephone records, and other documents on which
the billings of her attorneys were based. The trial court denied Lesikar’s motion to
compel production of these documents based upon Moon’s assertion of the attorney-
client privilege and the work-product doctrine. Moon’s counsel also stated that they had
no record of telephone bills.
A client has the privilege to refuse to disclose and to prevent others from
disclosing confidential communications made for the purposes of facilitating the
rendition of professional legal services to the client (1) between the client or the client’s
representative and the client’s lawyer or the lawyer’s representative, (2) between the
lawyer and the lawyer’s representative, (3) by the client or the client’s representative, or
the client’s lawyer or a representative of the lawyer, to another lawyer or a representative
of the other lawyer representing another party in a pending action and concerning a
matter of common interest therein, (4) between representatives of the client or between
the client and a representative of the client, or (5) among lawyers and their
10
representatives representing the same client. See Tex. R. Evid. 503(b); Pittsburgh
Corning Corp. v. Caldwell, 861 S.W.2d 423, 424 (Tex. App.—Houston [14th Dist.]
1993, orig. proceeding).
Lesikar relies upon the “offensive-use doctrine” and claims that “a party suing for
[attorney’s] fees waives attorney-client privilege and work-product immunity as to those
disclosures which will establish an opponent’s defense.” Under the offensive-use
doctrine, the attorney-client privilege may be waived when the privilege is used as a
sword rather than a shield. Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993).
A reviewing court considers the following three factors to determine whether a party has
waived privilege under the offensive-use doctrine: (1) the party asserting the privilege
must seek affirmative relief; (2) the privileged information sought must go to the very
heart of the affirmative relief sought and must be such that, if believed by the fact finder,
in all probability it would be outcome determinative of the claim asserted; and (3)
disclosure of the confidential communication must be the only means by which the
aggrieved party may obtain the evidence. See id. If any one of these requirements is
lacking, the trial court must uphold the privilege. See id.
After reviewing the record, we conclude that the trial court did not abuse its
discretion by impliedly finding that the privileged information sought did not go to the
very heart of the affirmative relief sought or that this information, if believed by the fact
finder, in all probability would not be outcome determinative of the claim asserted. See
Republic Ins. Co., 856 S.W.2d at 163; Hooper v. Smallwood, 270 S.W.3d 234, 244–45
(Tex. App.—Texarkana 2008, pet. denied). Accordingly, the trial court did not err in
impliedly concluding that Moon did not waive privilege under the offensive-use doctrine.
All Other Requested Discovery Denied
Lesikar also complains that the trial court denied him discovery bearing upon the
issue of Moon’s physical and mental condition, Moon’s purported use of assumed names,
Moon’s alleged use of alcohol or drugs, Moon’s frequency in changing addresses,
11
Moon’s income-tax filing history, Moon’s perceptual capacity, the ease of
communications with Moon, and Moon’s financial activities. Lesikar argues that the
evidence was relevant to demonstrate that Moon’s attorneys had difficulty
communicating with her, causing them to expend time and resources to communicate
with her, and that Moon was not credible.
Although Lesikar asserts the trial court erred in excluding or “blocking” this
discovery and in deeming the evidence as not relevant, Lesikar does not cite to any part
of the record in which he requested discovery in this regard or in which the trial court
ruled that he was not entitled to any such discovery. Even liberally construing Lesikar’s
appellate brief, we conclude that Lesikar has waived this point through inadequate
briefing. See Tex. R. App. P. 38.1(i); Curtis v. Comm’n for Lawyer Discipline, 20
S.W.3d 227, 231 n.2 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
Having addressed all the complaints Lesikar asserts under the first issue, we
overrule the first issue.
D. Did the trial court abuse its discretion in admitting or excluding evidence?
Lesikar asserts in his second issue that the trial court abused its discretion in
excluding certain evidence and in his third issue that the trial court erred in admitting
certain evidence. A trial court’s ruling to admit or exclude evidence is reviewed for an
abuse of discretion. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.
2001). Before the trial court’s judgment may be reversed based upon the erroneous
admission or exclusion of evidence, the appellate court must conclude that the error
probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a);
Interstate Northborough P’ship v. State, 66 S.W.3d at 220. Typically, a trial court’s
erroneous evidentiary ruling will not be harmful unless the judgment turns on the
evidence that was erroneously excluded or admitted. See Interstate Northborough P’ship
v. State, 66 S.W.3d at 220. Ordinarily, this court will not reverse a judgment because a
12
trial court erroneously excluded or admitted evidence when the evidence in question is
cumulative and not controlling on a material issue dispositive to the case. See id.
Lesikar asserts that the trial court erred in admitting Plaintiff’s Exhibit 1, a
computer-generated, unredacted summary of legal billings and time entries for the case
compiled by Bayless. The trial court overruled Lesikar’s hearsay objection to this
exhibit. Lesikar asserts that Moon did not establish this exhibit was a properly
admissible business record compiled from contemporaneous entries pursuant to Texas
Rule of Evidence 803(6), that qualified as an exception to the hearsay rule. See Tex. R.
Evid. 803(6). This rule of evidence does not exclude “[a] memorandum, report, record,
or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made
at or near the time by, or from information transmitted by, a person with knowledge, if
kept in the course of a regularly conducted business activity, and if it was the regular
practice of that business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified witness, or
by affidavit that complies with Rule 902(10), unless the source of information or the
method or circumstances of preparation indicate lack of trustworthiness.” Id. Bayless
testified that she kept a record of the time she spent on Moon’s case as part of her regular
practice of law. If she was unable to log the time into a computer right away, she often
recorded the time she spent on Moon’s case on pieces of paper so that she could log the
entries into a computer at a later time. According to Bayless, she entered the time billed,
as written on the pieces of paper, into a computer within a week or so of the event, and
never more than two weeks later. She threw those pieces of paper away after logging the
entries in a computer. Business records of an attorney are admissible pursuant to Rule
803(6) to support attorney’s fees. Connor v. Wright, 737 S.W.2d 42, 44 (Tex. App.—San
Antonio 1987, no writ). The trial court did not abuse its discretion in overruling
Lesikar’s objection and admitting Plaintiff’s Exhibit 1 into evidence. See Connor, 737
S.W.2d at 45.
13
Lesikar refers to the trial court’s ruling that Lesikar could not introduce evidence,
namely excerpts of Moon’s deposition testimony relating to Moon’s history of filing
income-tax returns, “perceptual capacity,” and “other issues previously discussed” in his
first issue, which were deemed by the trial court as irrelevant and inadmissible. The trial
court ruled that the evidence of medical and rehabilitative treatment and Moon’s
purported use of alcohol and drugs was not relevant in a trial for attorney’s fees. The trial
court offered to hear any evidence that Lesikar believed supported a determination as to
whether the fees were equitable and just; the evidence did not go to the jury, which
determined only what a reasonable and necessary fee was. Evidence that is not relevant
is inadmissible. Tex. R. Evid. 402. Evidence is relevant if it tends to make the existence
of a fact more or less probable than it would be without the evidence. Tex. R. Evid. 401.
Even if it is relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, or needless presentation of cumulative
evidence. Tex. R. Evid. 403. On this record, we conclude that the trial court did not
abuse its discretion by determining that the complained-of evidence, regarding Moon’s
tax filings, “perceptual capacity,” financial skills, purported medical treatments, or
alleged use of alcohol and narcotics was not relevant to a determination of a reasonable
and necessary attorney’s fee. See Tex. R. Evid. 402.
Lesikar argues that, even if the evidence was not relevant, Moon opened the door
to the admissibility of this evidence by bringing it up in Moon’s opening statement and
case-in-chief, and by presenting it to the jury. After reviewing all of the portions of the
record cited by Lesikar, we conclude that the trial court did not abuse its discretion by
determining that Moon did not “open the door” as to the evidence in question. See
Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 402 (Tex. App.—Houston [1st Dist.]
2001, pet. denied) (holding that party had not opened the door to otherwise irrelevant
evidence).
14
Lesikar also asserts he was not allowed to introduce evidence of what his counsel
had charged for the same legal work in the same case. Lesikar cites to the record of the
hearing on the motions in limine in which the trial court ruled that Lesikar’s attorney
could not testify about the attorney’s fees incurred in the case relating to disposition of
the Airport Stock because the Airport Stock was not relevant to reasonable and necessary
fees in the case under review. As reflected in the record, the trial court ruled that Lesikar
could present evidence of the amount of time his counsel spent on the case. However, the
record reflects that Lesikar withdrew the request to present evidence of what his attorneys
charged and never offered that evidence. Because the record does not reflect that Lesikar
offered the evidence or received an adverse ruling, Lesikar failed to preserve error in the
trial court. See Tex. R. App. P. 33.1(a); Neely v. Comm’n for Lawyer Discipline, 302
S.W.3d 331, 350 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (providing that an
appellant waived complaint by withdrawing a motion and failing to secure an adverse
ruling on the complaint). Lesikar thus waived this complaint.
Lesikar further complains that he was not permitted to introduce Defense Exhibit
1, a color-coded version of Bayless’s billings that the parties referred to as a “mark-up.”
The trial court ruled that Lesikar could use the exhibit as a demonstrative aid, and each
juror had a copy of it while Lesikar’s counsel testified about it. Even if we presume,
without deciding, that the trial court erred in refusing to admit this exhibit into evidence,
we conclude that any such error did not probably cause the rendition of an improper
judgment. See Tex. R. App. P. 44.1(a); Wilson v. John Frantz Co., 723 S.W.2d 189,
194 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.).
In addition, Lesikar complains that the trial court admitted into evidence the
special master’s report, Plaintiff’s Exhibit 4, over his objections. As reflected in the
record, when Bayless testified about the contents of the report, Lesikar objected to the
relevance of the special master’s report, and the trial court ruled that Bayless could
examine the document if she relied on it as an expert. When the report was offered into
15
evidence, Lesikar objected to relevance and the trial court ruled that the document was
relevant because it revealed the complexity of the case. Lesikar also objected to the
report as inadmissible hearsay; the trial court admitted the master report for the sole and
limited purpose of determining the reasonableness and necessity of attorney’s fees, but
that it was not to be used to retry the original case. The parties went through the report
line by line and Bayless testified that she reviewed the report and billed for her work
related to the report.7
A special master’s report is determinative of the facts reported in the case in which
the master was appointed absent a proper objection by a party. Lesikar, 237 S.W.3d at
371; Owens-Corning Fiberglass Corp. v. Caldwell, 830 S.W.2d 622, 625 (Tex. App.—
Houston [1st Dist.] 1991, orig. proceeding). The master’s report was conclusive as to
certain issues in the original suit and explained the issues tried in the original case, in
which the attorney’s fees were awarded. See Owens-Corning Fiberglass Corp, 830
S.W.2d at 625. The trial court admitted it for the limited purpose of showing the
complexity of the original suit, but not to address the merits of the issues involved in that
case. We conclude that the trial court did not abuse its discretion in admitting the special
master’s report over Lesikar’s objections. Even if the trial court had erred, any error did
not probably cause the rendition of an improper judgment. See Tex. R. App. P. 44.1(a);
Interstate Northborough P’ship v. State, 66 S.W.3d at 220.
Having addressed all of Lesikar’s arguments regarding alleged error in the
admission or exclusion of evidence, we overrule Lesikar’s second and third issues.
7
Lesikar complains on appeal that he had a right to present his defense to the jury without the
uninfluenced findings of the master; this argument was not presented to the trial court for a ruling. Thus,
Lesikar waived this complaint. Lesikar also asserts that a master’s report is not admissible evidence on
any issue in a jury trial, citing San Jacinto Oil Co. v. Culberson. See 101 S.W. 197, 199 (Tex. 1907).
Lesikar failed to voice this complaint in the trial court and obtain an adverse ruling. Even if he had
preserved error, this case is not on point. See id.
16
E. Is a new trial warranted based on allegedly improper jury argument or
sidebar comments?
In Lesikar’s fourth issue, he asserts that Moon’s counsel continually attacked
Lesikar’s counsel’s integrity via sidebar comments. Lesikar characterizes the comments
as prejudicial, incurable, and necessitating a new trial. Lesikar cites as objectionable the
following closing argument by Moon’s counsel, invoking God’s name, to which Lesikar
did not object:
Now, for any trier-of-fact to believe that every single minute that Bobbie
Bayless spent on working this case up on Carolyn Moon’s behalf and
presenting it to the Judge was not reasonably necessary means that you
have to find that she does not speak the truth under oath. And how in
God’s name can a jury believe that?
Lesikar also cites to three other places in the record showing what he contends are
improper sidebar comments by Moon’s counsel. It is unclear what statements amounted
to an allegedly improper comment in one instance, and, in the two other instances,
Moon’s counsel objected, addressing the trial judge, and referenced Lesikar’s counsel as
“misleading” the jury. Following one instance, the trial court stated, “All right. Well, I
have a lot of confidence in the intelligence of this jury. So, I’m just going to let them sort
it out.” Lesikar did not lodge an objection to any of the comments at the times they were
made.
A party preserves error for allegedly improper jury argument or sidebar comments
by timely objecting to the complained-of comments and obtaining an adverse ruling on
the objection. See Living Ctrs. Of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex.
2008). A party complaining of an improper argument must not have invited or provoked
the improper argument. See id. Generally, retraction of the argument or an instruction
from the trial court can cure probable harm, but in rare instances in which the argument is
incurable, a party may complain on appeal about the argument even without a timely
objection. Id. Reversal is proper upon a showing that “the probability that the improper
argument caused harm is greater than the probability that the verdict was grounded on the
17
proper proceedings and evidence.” Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 840
(Tex. 1979).
Lesikar did not assert an objection to any of these comments. Therefore, Lesikar
must show that the comments constituted incurable jury argument. See Jones v. Republic
Waste Servs. of Tex., Ltd., 236 S.W.3d 390, 402 (Tex. App.—Houston [1st Dist.] 2007,
pet. denied). When an argument is so inflammatory that its harmfulness could not be
eliminated by an instruction to the jury to disregard, the prejudicial nature of the
argument is so acute that the comment is incurable. Otis Elevator Co. v. Wood, 436
S.W.2d 324, 333 (Tex. 1968). We examine all the circumstances surrounding the making
of the statements to determine if the comment was so inflammatory that its perceived
prejudicial effect could not have been cured by an instruction. See Standard Fire Ins.
Co., 584 S.W.2d at 839–40. Rarely will an improper argument so prejudicially influence
the jury that error cannot be cured. See Living Ctrs. Of Tex., Inc., 256 S.W.3d at 680.
Given the surrounding circumstances, the comments were curable. See Jones, 236
S.W.3d at 403. The four comments were brief in duration and occurred near the end of a
four-day trial, after most of the evidence in the case had been admitted. On this record,
we conclude the comments were not so inflammatory that their perceived prejudicial
effect would have prevented the members of the jury from following their oaths with
proper instructions from the trial judge. See id. at 404. To have preserved error, Lesikar
should have timely objected to the comments and sought an appropriate instruction from
the trial court. See id. at 403. Because we conclude the comments were curable with an
instruction to disregard and because Lesikar failed to object, Lesikar has waived error on
his complaint. See Standard Fire Ins. Co., 584 S.W.2d at 839.
F. Did the trial court abuse its discretion by inappropriate actions and
comments?
Lesikar asserts in his fifth issue that the trial court committed a number of
“violations” that deprived Lesikar of a fair trial. Specifically, Lesikar asserts that the trial
judge (1) improperly left the bench during the jury trial; (2) improperly examined a
18
witness who was testifying before the jury; and (3) made remarks calculated to convey to
the jury a negative opinion of Lesikar’s case or evidence.
Before this court can reverse the trial court’s judgment based upon these
complaints, we must conclude Lesikar preserved error in the trial court by presenting
these complaints to the trial court and obtaining an adverse ruling. See Tex. R. App. P.
33.1(a); Tucker v. Thomas, —S.W.3d—, —, No. 14-09-01081-CV, 2011 WL 6644710, at
*15 (Tex. App.—Houston [14th Dist.] Dec. 20, 2011, no pet.) (en banc). A review of the
appellate record shows that Lesikar did not voice any of these complaints in the trial
court or obtain rulings from the trial court. Lesikar has not asserted that any of these
alleged errors would constitute fundamental error, nor has Lesikar cited any case
addressing this issue. The Supreme Court of Texas has concluded that, in the context of
civil appeals, fundamental error is a narrow doctrine. See In re B.L.D., 113 S.W.3d 340,
350–52 (Tex. 2003). None of the alleged errors fall within the narrow scope of the
fundamental-error doctrine recognized by the Supreme Court of Texas. See id.
Therefore, fundamental error does not apply to these complaints. See id. We conclude
Lesikar has failed to preserve error as to these complaints. See Tucker, 2011 WL
6644710, at *15. We overrule Lesikar’s fifth issue.8
G. Did the trial court abuse its discretion in denying an offset?
Lesikar asserts in his eleventh issue that the trial erred in failing to grant an offset
against the attorney’s fee award. Lesikar refers to the 2005 Judgment as crediting him
with an offset of $126,473 against Moon’s claim for $375,000 in attorney’s fees. The
right to an offset is an affirmative defense. See Brown v. Am. Transfer & Storage Co.,
601 S.W.2d 931, 936 (Tex. 1980). A party asserting an offset carries the burden of
pleading offset and of proving facts necessary to support offset. See id. Although
8
In Lesikar’s sixth issue, he refers to the alleged errors in his first five issues as cumulative error,
warranting reversal of the trial court’s judgment. Inasmuch as we have overruled each of these issues
already, we conclude that Lesikar’s sixth issue adds nothing more for this court’s consideration. We
overrule Lesikar’s sixth issue.
19
Lesikar faults the trial court for failing to allow him an offset, the record shows that
Lesikar never requested an offset in his pleadings. Because the offset was not requested,
the complaint is not preserved for appellate review. See Coastal Shutters & Insulation,
Inc. v. Derr, 809 S.W.2d 916, 920 (Tex. App.—Houston [14th Dist.] 1991, no writ). To
the degree we construe Lesikar to argue that his right to an offset exists as a matter of law
by virtue of the 2005 Judgment, that judgment was a part of the fee award that was
reversed on appeal. The record does not reflect that Lesikar has either pleaded or proven
the facts necessary to support an offset. See Lone Starr Multi-Theatres, Ltd. v. Max
Interests, Ltd., 365 S.W.3d 688, 704 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Accordingly, we overrule Lesikar’s eleventh issue.9
Having overruled each of Lesikar’s issues on appeal, we affirm the trial court’s
judgment.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, Brown, and Boyce.
9
Because we overrule the eleventh issue, we need not and do not address Moon’s second conditional
cross-point.
20