Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00023-CV
ASTIN REDEVELOPMENT GROUP, LLC,
Appellant
v.
CITGO PETROLEUM CORP.,
Appellee
From the County Court at Law No. 1
Brazos County, Texas
Trial Court No. 4975-B
MEMORANDUM OPINION
Astin Redevelopment Group, LLC owns a commercial building in downtown
Bryan, Texas. Citgo Petroleum Corp. leased this commercial office space from Astin to
maintain a pipeline control center from which it operates pipelines for transporting
petroleum and related products. Astin sought to evict Citgo and filed a forcible entry
and detainer action (FED) against Citgo in the justice court. The justice court ruled in
favor of Citgo. Astin appealed to the county court at law. After several hearings, the
county court at law also ruled in favor of Citgo and awarded Citgo attorney’s fees and
out-of-pocket expenses. Because there was no reversible error in the trial court’s
judgment but the amount of attorney’s fees, out-of-pocket expenses, and costs found by
the trial court in its Amended Nunc Pro Tunc Findings of Fact and Conclusions of Law
differ from what was actually awarded in the trial court’s judgment, we modify the
amount awarded and affirm the trial court’s judgment as modified.
JURISDICTION
Astin first contends the trial court, that is, the county court at law, erred in
rendering judgment for Citgo because the lease had no fixed end date and was therefore
unenforceable. Specifically, Astin wants us to determine that the lease agreement was
invalid; and thus, the relationship between the parties was a tenancy at will. The
county court at law found that the parties’ lease agreement was valid and enforceable.
We questioned whether we have jurisdiction to decide this issue. We also
questioned whether the county court at law had jurisdiction to determine whether the
lease was valid. Neither party briefed these questions initially; so we asked for
supplemental briefing on the issue. We now address that question as one of the issues
in this appeal.1
1 After supplemental briefing, both parties contend we have jurisdiction of the appeal. Neither party
contends that the necessity for the county court at law to determine the validity of the lease is a question
of title over which the county court at law had no jurisdiction. We note that implicit in any FED suit there
is always the issue of whether the lease or other claim gives the occupier the right to immediate
possession notwithstanding there may be a separate suit regarding whether the lease had been breached
or the meaning of specific terms in that lease. This case presents a different view of the problem created
by the legislature in giving two courts concurrent jurisdiction to address the right of possession in the
event the lease must be construed to determine who has that right. The legislature also provided that to
the extent the justice court or county court at law necessarily resolves some issues as a precursor to
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 2
Standard of Review
Whether a trial court has jurisdiction is a question of law subject to de novo
review. Tex. Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011); Tex.
Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). The
jurisdiction of the appellate court as to the merits of a case extends no further than that
of the court from which the appeal is taken. Pearson v. State, 315 S.W.2d 935, 938 (Tex.
1958). Jurisdiction may be raised for the first time on appeal by the parties or by the
appellate court. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445 (Tex.
1993); Aguilar v. Weber, 72 S.W.3d 729, 731 (Tex. App.—Waco 2002, no pet.).
Justice Court Jurisdiction in FED
By statute, a justice court has jurisdiction over a forcible entry and detainer
action. TEX. PROP. CODE ANN. § 24.004 (West 2014). The justice court, or county court at
law on appeal, cannot, however, resolve any questions of title beyond the immediate
right to possession. Bacon v. Jordan, 763 S.W.2d 395, 396 (Tex. 1988); Padilla v. NCJ Dev.,
Inc., 218 S.W.3d 811, 815 (Tex. App.—El Paso 2007, pet. dism'd w.o.j.). Thus, no other
issues, controversies or rights of the parties related to the property can be adjudicated in
a detainer suit. Puentes v. Fannie Mae, 350 S.W.3d 732, 738-39 (Tex. App—El Paso 2011,
pet. dism'd). In determining whether a lawsuit involves the adjudication of title, we
look to the "gist" of the case after reviewing the plaintiff's pleadings, the answer, and the
determining the right to immediate possession, that determination is not binding or given res judicata
effect in a district court suit, if any. See TEX. CIV. PRAC. & REM. CODE § 31.005 (West 2008).
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 3
evidence presented. Merit Mgmt. Partners I, L.P. v. Noelke, 266 S.W.3d 637, 647 (Tex.
App.—Austin 2008, no pet.).
The Case
In its initial Petition for Forcible Detainer filed in the justice court, Astin alleged
that the suit was for eviction, that the lease provided for the payment of a monthly rent
by Citgo, that Citgo failed to make those monthly payments, and that, as a result, Astin
was entitled to immediate possession of the premises. Prior to the filing of the suit,
Citgo paid Astin all the rent Astin initially contended was due. The justice court trial
was based on Astin’s petition and Citgo prevailed. On the day of the trial de novo in
the county court at law, Astin amended its petition and added an alternative claim, and
was argued as such on appeal, that if the lease commencement date never occurred as
Citgo had contended in the justice court, then Citgo was a tenant at will because, as
Astin explained in a trial brief filed on the same day, the lease was uncertain as to its
duration and afforded Citgo the opportunity to terminate the lease at will. A good
portion of Astin’s argument at the trial de novo focused on trying to persuade the
county court at law judge that the lease was invalid and that a tenancy at will had been
created.
In its supplemental brief filed in response to our request for the parties to
address the jurisdictional issue, Astin argues that the Texas Supreme Court has directly
answered our question, holding that a justice court can construe a lease to determine
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 4
who has the right of immediate possession. See McGlothlin v. Kliebert, 672 S.W.2d 231,
232 (Tex. 1984). However, the issue in McGlothlin was whether the district court could
grant a temporary injunction enjoining the proceeding in the justice court by the
landowner to evict the tenant, not whether the justice court could hear the tenant’s
other claims of damages and declaratory relief. Further, the parties in McGlothlin were
not claiming that the lease was invalid. Thus, the Texas Supreme Court’s opinion is not
dispositive of our question.
Citgo, in its supplemental brief, also asserts the county court at law had
jurisdiction, citing us to several courts of appeals decisions. However, those cases are
also not dispositive. None of those courts were asked to invalidate a lease, only
interpret it. See Geters v. Baytown Hous. Auth., 430 S.W.3d 578 (Tex. App.—Houston
[14th Dist.] 2014, no pet.); Khalilnia v. Fed. Home Loan Mortg. Corp., No. 01-12-00573-CV,
2013 Tex. App. LEXIS 2991 (Tex. App.—Houston [1st Dist.] March 21, 2013, pet. denied)
(mem. op.); Effel v. Rosberg, 360 S.W.3d 626 (Tex. App.—Dallas 2012, no pet.). Further,
the question of jurisdiction was not even raised or discussed in two of the cases cited,
Geters and Khalilnia.
Although a leasehold can be an interest in real property in which a dispute over
its existence could involve a question of title to real property, see Merit Mgmt. Partners I,
L.P. v. Noelke, 266 S.W.3d 637, 643 (Tex. App.—Austin 2008, no pet.), we believe that in
this case, the county court at law necessarily had to decide whether Citgo was a tenant
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 5
under the lease, or whether Citgo was only a tenant at will, to determine who had the
right to immediately possess the building. See e.g., Effel v. Rosberg, 360 S.W.3d 626, 629-
630 (Tex. App.—Dallas 2012, no pet.) (court rejected allegations by lessee that she had a
life estate and a lifetime lease deprived the county court at law of jurisdiction). Thus,
we hold the county court at law had jurisdiction to make that determination; and we,
therefore, have jurisdiction to review that decision.
Accordingly, we proceed to resolve Astin’s first issue.
Law
A lease may be defined as a grant of an estate in land for a limited term, with
conditions attached. Holcomb v. Lorino, 79 S.W.2d 307, 310 (Tex. 1935). To create an
estate for years, or for any definite term, the lease must be certain, or capable of being
made certain, as to the beginning, duration, and termination of the term. Haley v. Gpm
Gas Corp., 80 S.W.3d 114, 118 (Tex. App.—Amarillo 2002, no pet.) (quoting Willis v.
Thomas, 9 S.W.2d 423, 424 (Tex. Civ. App.—San Antonio 1928, writ dism'd w.o.j.)). See
also Hill v. Hunter, 157 S.W. 247, 252 (Tex. Civ. App.—Austin 1913, writ ref’d). A lease
for years may begin, for example, “when a house is suitable to be occupied.” Hill, 157
S.W. at 252.
All leases for uncertain terms are prima facia tenancies at will. Holcomb, 79 S.W.2d
at 310. A lease will be most strongly construed against the lessor; and where a lease
contract is written in plain, clear, and unambiguous language, its construction is a
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question to be decided by the court and not by a jury. Golden Spread Oil, Inc. v. American
Petrofina Co., 431 S.W.2d 50, 52 (Tex. Civ. App.—Amarillo 1968, writ ref’d n.r.e.).
The Lease
The lease between Astin, the lessor, and Citgo, the lessee, provided a beginning
date as follows:
The initial Lease term shall begin on the Commencement Date and, subject
to the terms and conditions of this Lease, shall run for sixty (60) months
from the “Commencement Date". The Commencement Date shall be the
later of the date of Substantial Completion (as hereinafter defined), or July
1, 2011. "Substantial Completion" is defined as the point in time when all
Leasehold Improvements have been installed and commissioned by
Landlord to the point of being suitable for Tenant's intended use and a
certificate of occupancy has been issued by the City of Bryan, Texas for the
Leased Premises.
“Leasehold Improvements” were described as “certain modifications that Tenant may
specify.” Citgo, as the tenant, was responsible for all costs associated with the leasehold
improvements. Further, Citgo was not liable for the payment of rent until the
Commencement Date.
Application
Although Astin now contends the lease was unenforceable because the lease had
no fixed or certain end date, its argument is essentially that because the lease term ran
for a fixed period from an uncertain start date, the term of the lease was indefinite and
therefore unenforceable. The start date is uncertain, Astin’s argument continues,
because it is tied to an event not certain to occur at all. Astin cites several cases in
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support of its argument; however, none of these cases describe an uncertain
commencement date as is alleged to be the problem in this case. The cases describe an
uncertain duration of the lease or an uncertain date for the termination of the lease. See
e.g. Effel v. Rosberg, 360 S.W.3d 626, 630 (Tex. App.—Dallas 2012, no pet.) (term for a
lessee’s life is uncertain and creates tenancy at will); Sherrod v. Powell, No. 10-10-00173-
CV, 2012 Tex. App. LEXIS 1272 (Tex. App. —Waco Feb. 15, 2012, no pet.) (mem. op.)
(lease for uncertain length of time creates estate at will); Providence Land Servs., LLC v.
Jones, 353 S.W.3d 538, 342 (Tex. App.—Eastland 2011, no pet.) (indefinite ending term
creates tenancy at will).
In this case, although there is a factual dispute about whether “substantial
completion” has occurred, there is nothing indefinite, in a legally relevant sense, about
when the lease would commence. The lease specifically provided that the
commencement date would occur when Astin completed the leasehold improvements
and a certificate of occupancy was issued. The list of what items were to be considered
“leasehold improvements” was attached to the lease as Exhibit E. Although the lease
does not contain a specific calendar date, it provides sufficiently clear definitions which
allow the parties to determine the Commencement Date. See e.g. Jones, Day, Reavis &
Pogue v. Aetna Life Ins. Co., No. 05-96-01565-CV, 1998 Tex. App. LEXIS 4344 (Tex. App.—
Dallas July 20, 1998, no pet.) (not designated for publication). See also e.g. STS Gas Servs.
v. Seth, No. 13-05-00463-CV, 2008 Tex. App. LEXIS 366, 14-15 (Tex. App.—Corpus
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 8
Christi Jan. 17, 2008, no pet.) (mem. op.).
Accordingly, the lease is not uncertain or invalid; and the trial court did not err
in determining that Citgo was entitled to possession under the lease. Astin’s first issue
is overruled.2
Fees Supported by Pleadings
Astin argues in its third issue that the trial court erred in awarding attorney’s
fees to Citgo because the award was not supported by the pleadings. On the afternoon
of the March 19, 2013 hearing, Astin amended its petition for forcible detainer to
include, among other items, a request for attorney’s fees. Eight minutes later, Citgo
amended its original answer, styled “Defendant Citgo Petroleum Corporation’s First
Amended Motion to Abate, Plea to the Jurisdiction and Alternate Motion to Dismiss,
and subject thereto, Its Original Answer,” which included a request for attorney’s fees.
Astin complains that Citgo was not entitled to amend its answer because Citgo did not
amend seven days before trial and did not ask the trial court for leave to file its
amendment, contrary to Texas Rule of Civil Procedure 63. See TEX. R. CIV. P. 63. Thus,
2 Much of the problem in grappling with this issue in this case and on these facts is that Astin argued
mutually inconsistent theories. Initially, it presented a straight forward failure-to-pay-rent eviction
proceeding in the justice court. However, when Citgo tendered the rent Astin argued was due; Astin was
unable to evict Citgo under that theory. Nevertheless, Astin pursued the eviction action and added a
new, but inconsistent, theory. The new theory was that the lease, which Astin was also suing to enforce,
was not enforceable because of an uncertain start date. Essentially, the county court at law had to decide
which theory presented by Astin was correct and then proceed under one of the two theories. Astin
prevailed in part on one of the two inconsistent theories presented to the county court at law–that Astin
had an enforceable lease with Citgo. Thus, we question whether Astin is in a position to now challenge
the trial court’s judgment to the extent it found in favor of Astin on this part of one of Astin’s theories of
recovery. Nevertheless, rather than procedurally default Astin on this issue, we have chosen to address
it.
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 9
its argument continues, we should ignore Citgo’s amended answer and review this
issue as if Citgo had not pled for the recovery of attorney’s fees.
The ability to recover attorney’s fees in a forcible entry and detainer action filed
before August 31, 2013 is governed by former Rule of Civil Procedure 752, now found
in Rule of Civil Procedure 510.11, and section 24.006 of the Texas Property Code. See
TEX. R. CIV. P. 752, repealed by Texas Supreme Court, Misc. Docket No. 13-9049,
effective August 31, 2013; TEX. R. CIV. P. 510.11, added by Texas Supreme Court, Misc.
Docket No. 13-9049, effective August 31, 2013; TEX. PROP. CODE ANN. 24.006 (West 2014).
Former Rule 752 provided in relevant part
On the trial of the case in the county court the appellant or appellee will
be permitted to plead, prove and recover his damages, if any, suffered for
withholding or defending possession of the premises during the pendency
of the appeal. Damages may include but are not limited to … attorney
fees in the justice and county courts provided, as to attorney fees, that the
requirements of Section 24.006 of the Texas Property Code have been met.
TEX. R. CIV. P. 752, repealed by Texas Supreme Court, Misc. Docket No. 13-9049,
effective August 31, 2013. According to the Property Code, a prevailing tenant in “an
eviction suit” is entitled to recover reasonable attorney’s fees if, as it is in this appeal, a
written lease entitles the landlord or the tenant to recover attorney's fees. TEX. PROP.
CODE ANN. 24.006(c) (West 2014).
Pleading amendments sought within seven days of the time of trial are to be
granted unless there has been a showing of surprise to the opposite party. TEX. R. CIV.
P. 63; Goswami v. Metropolitan Sav. & Loan Asso., 751 S.W.2d 487, 490 (Tex. 1988). Rule 63
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 10
is to be liberally construed; and, where the record is silent as to any basis to conclude
that the amended pleading was not considered by the trial court, and there was no
showing of surprise or prejudice, leave of court is presumed. Lee v. Key West Towers,
Inc., 783 S.W.2d 586, 588 (Tex. 1989).
Astin acknowledged the filing of, and its possession of, Citgo’s amended answer
at the beginning of the hearing on March 19. Astin asserted no claim of surprise, nor
requested a continuance to respond to the amended answer. The record is silent as to
any basis to conclude that the amended pleading was not considered by the trial court.
Thus, leave of court to file the amended answer is presumed. Because leave is
presumed, Citgo pled for recovery of attorney’s fees pursuant to Rule 752. Astin’s third
issue is overruled.
Admission of Attorney’s Fees Evidence
Astin next argues that the trial court erred in permitting Citgo to present
evidence of attorney’s fees after trial (issue 5) and thus, because the trial court erred in
admitting the evidence, erred in awarding attorney’s fees with no evidentiary support
admitted at trial (issue 4). Astin contends that the trial had ended at the conclusion of
the March 19, 2013 hearing and that because Citgo then failed to move to reopen the
evidence, the trial court erred in allowing Citgo to present evidence of its attorney’s
fees.
When it clearly appears to be necessary to the due administration of justice, the
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 11
trial court may permit additional evidence to be offered at any time. TEX. R. CIV. P. 270.
In determining whether to permit additional evidence under Rule 270, a court should
consider: (1) the movant's diligence in obtaining the additional evidence; (2) the
decisiveness of this evidence; (3) whether the reception of the evidence could cause any
undue delay; and (4) whether the granting of the motion could cause any injustice.
McCuen v. Huey, 255 S.W.3d 716, 738 (Tex. App.—Waco 2008, no pet.) (quoting Saunders
v. Lee, 180 S.W.3d 742, 745 (Tex. App.—Waco 2005, no pet.)). These are just factors to be
considered, and even if all of the factors are not satisfied, a trial court's decision to
permit the presentation of additional evidence should not be disturbed absent an abuse
of discretion. See Naguib v. Naguib, 137 S.W.3d 367, 372-373 (Tex. App.—Dallas 2004,
pet. denied).
Citgo requested attorney’s fees in its amended answer. Even if the March 19
hearing was the entirety of the trial, as Astin argues, Rule 270 permits the trial court to
receive additional evidence at any time. Citgo filed its motion for attorney’s fees on
April 5, 2013, less than a month after the March 19 hearing, and a judgment was not
signed until October 22, 2013. Citgo explained to the trial court at a continued hearing
on attorney’s fees that it could not determine all of its attorney’s fees until the trial
ended. Further, after deciding to permit the presentation of evidence on attorney’s fees,
Astin was also permitted to present evidence regarding attorney’s fees.
Accordingly, we find the trial court did not abuse its discretion in permitting
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additional evidence regarding attorney’s fees. And, because the trial court did not
abuse its discretion in permitting additional evidence, the trial court’s award was not
lacking evidentiary support. Astin’s fourth and fifth issues are overruled.
Billing Records Considered
Next, Astin contends the trial court erred in considering billing records of the
law firms of Wright & Close, LLP and of Chamberlain, Hrdlicka, White, Williams & Aughtry
when no billing records were admitted into evidence (issue 6) and thus, the evidence is
legally insufficient to support the amount of attorney’s fees awarded (issue 7). Invoices
from both firms were offered into evidence during the May 10, 2013 hearing on
attorney’s fees. The invoices were not admitted at that time. The invoices were then
tendered to the court in Citgo’s offer of proof during the continuation of the attorney’s
fees hearing on September 19, 2013. By letter dated October 21, 2013, the trial court
informed the parties that
I erred in not allowing the invoices for Wright & Close, LLP and
Chamberlain, Hrdlicka, White, Williams & Aughtry to be admitted into
evidence. Therefore, I am admitting exhibits 2 and 3 into evidence.
Accordingly, because these billing records were admitted into evidence, the trial court
did not err in considering them. Astin’s sixth issue is overruled. Astin’s seventh issue
is based solely on its contention that no billing records for Wright & Close, LLP and of
Chamberlain, Hrdlicka, White, Williams & Aughtry were admitted into evidence. Because
they were admitted, Astin’s seventh issue is overruled.
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Reasonable and Necessary Attorney’s Fees
Astin further contends that the trial court abused its discretion in finding Citgo’s
attorney’s fees to be reasonable and necessary (issue 9); and the evidence was factually
insufficient to support the amount awarded (issue 8). Citgo requested $234,269.73 in
attorney’s fees and $9,054.23 in costs. The trial court awarded Citgo $170,811.73 in
attorney’s fees and costs. In an Amended Nunc Pro Tunc Findings of Fact and
Conclusions of Law, the trial court further reduced the attorney’s fees amount, due to
an earlier clerical error, to $154,110. No new judgment reflecting the corrected amount
of attorney’s fees was signed.
In general, the party seeking to recover attorney's fees carries the burden of
proof. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). Reasonableness of
attorney's fees is ordinarily left to the factfinder, and we may not substitute our own
judgment for that of the factfinder. Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547
(Tex. 2009). There are at least eight factors to be considered in determining the
reasonableness of attorney's fees. See Arthur Andersen & Co. v. Perry Equip. Corp., 945
S.W.2d 812, 818 (Tex. 1997); see also Young v. Qualls, 223 S.W.3d 312, 314 (Tex. 2007)
(factors also apply to fee awards made by trial courts). However, evidence of each of
these factors is not required to support an award of attorney's fees. Arthur J. Gallagher &
Co. v. Dieterich, 270 S.W.3d 695, 706 (Tex. App.—Dallas 2008, no pet.).
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 14
Factors
Astin takes issue with each Arthur Anderson factor which we set out below.
I. Time and labor required, novelty and difficulty of the questions involved, and skill
required to perform the legal service properly
Several attorneys for Citgo’s defense team all testified that this was not the
normal forcible entry and detainer action. John Zavitsanos of Ahmad, Zavitsanos,
Anaipakos, Alavi & Mensing, P.C., (A.Z.A.) stated that he has handled anywhere from 40-
50-plus forcible entry and detainer cases and had never had any case like this one.
Every issue was disputed. There were mandamus proceedings; issues of abatement
between the county court at law and the district court; procedural motions regarding
who had jurisdiction, who was going to go first, which case was going to be abated, and
what issues were going to be taken up in which court because of the overlap in the
issues between this case and the case pending in district court. Zavitsanos’ firm “ended
up having to review literally 15,000 pages of documents that we culled through and
worked on to about 200 exhibits that we offered into evidence in this case.” Zavitsanos
believed this case involved 20 times the amount of work that a traditional forcible entry
and detainer case involves.
Gaines West of West, Webb, Allbritton & Gentry P.C., had been in practice in the
Brazos County area for 31 years and had never been involved in a case like this. He
confirmed that it was a very complicated case. Further, Russ Hollenbeck, a partner with
Wright & Close in Houston and an appellate specialist, testified that the issue raised in
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the mandamus petition which he prepared for Citgo was a novel, complex issue which
required an “intensive” amount of time and labor.
II. Likelihood that the acceptance of the particular employment will preclude other
employment by the lawyer
The attorneys for Citgo’s defense each testified that because of the time frame
within which they each had to prepare for the different proceedings under their control,
they were precluded from working on any other matter within their respective firms.
Zavitsanos also stated that his firm had to reassign a number of their other cases to
other lawyers in the firm so that the lawyers working on this case could prepare for
trial.
Astin argues that because Citgo’s attorneys did not specify exactly what cases or
clients they had to turn away due to their work on this case, we should not weigh this
factor in Citgo’s favor. However, Astin presents no case law which supports its
proposition that specific cases and clients must be identified before this factor could be
weighed in favor of the reasonableness of the attorney’s fees requested.
III. Fee customarily charged in the locality for similar legal services
Zavitsanos testified that his fee rate for a case involving the issues that were
presented in this case was $550 per hour. The rate for his associate was $275 per hour,
and the rate for his senior paralegal was $180 per hour. He also testified that from
discussions with other lawyers in Brazos County, the fee rate for a case as complex as
this one would range from $250-$600 per hour.
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 16
West, local counsel for Citgo, testified that his customary fee rate was $350 per
hour. Given the novelty of the issues in this case and the skill and experience required,
as well as his familiarity with the local courts and rules, he believed his fees were
reasonable and necessary. Further, West testified that when Astin’s trial counsel is
counsel for the other side in one of his cases, he makes his clients aware that the case “is
going to be a costly matter because he [Astin’s counsel] is going to raise every possible
claim that he can and he is gonna make it as difficult as possible.”
Hollenbeck, from Wright & Close, testified that he is an appellate specialist and is
board certified in civil appellate law. He stated he had personal knowledge and
familiarity with the rates charged for appellate attorneys in this region of Texas and
would say generally the rates were fairly standard for appellate practitioners who were
board-certified. He further stated that his hourly rate was $375 an hour and that that
rate was below midline for this area. The rates for another attorney with the firm and
an associate, both working on this case, were $365 per hour and $245 per hour,
respectively.
Astin called Michael Hoelscher as its attorney’s fees expert. Hoelscher testified
that from his experience in Brazos County, attorney’s fees in Brazos County for
attorneys with 20 years of experience could range from $225 an hour to $325 an hour.
He was not aware of anyone charging $350 per hour on a regular basis in Brazos
County, but it might happen on occasion. He thought that a maximum of $20,000 in
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fees in a forcible entry and detainer action might be justified but that $10,000 to $15,000
in attorney’s fees would be reasonable and necessary. Hoelscher usually handled
forcible entry and detainer cases for landlords and had never had a case where 10,000
pages of emails were produced and had to be sifted through or a case where 200
exhibits were used.
IV. Amount involved and the results obtained
As to this factor, Astin contends the attorney’s fees were not reasonable and
necessary because the total rent for the life of the lease was approximately $250,000 and
because Citgo filed many motions and original proceedings on which it did not prevail.
However, it was undisputed that Citgo operated a control center in the leased premises
to operate its pipelines which transported petroleum and other products in the Citgo
network throughout the country. There was also testimony that because this was a
pipeline control center, the result of being evicted could potentially cost Citgo tens of
millions of dollars and would be disastrous. Although Astin chastised Citgo’s attorneys
for filing many motions and original proceedings which were unsuccessful, there was
no evidence that any of these proceedings were determined by a court to be frivolous.
V. Time limitations imposed by the client or by the circumstances
Astin brought its forcible entry and detainer action in the justice court on January
9, 2013. After a hearing on Citgo’s motion to abate, the justice court abated the FED on
January 29, 2013, pending the resolution of the actions related to Citgo’s lease with
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 18
Astin filed by both Citgo and Astin in district court. Astin filed a mandamus petition
with the county court at law on January 30, 2013 to correct the justice court’s order to
abate. The mandamus petition was granted and a writ was issued directing the justice
court to vacate its abatement order and try the FED action. On February 6, 2013, the
justice court dismissed the FED. Then on February 11, 2013, the justice court signed a
judgment in favor of Citgo and Astin appealed. According to Astin, the trial de novo
was scheduled for February 28, 2013, just 17 days after the justice court’s judgment.
The A.Z.A. law firm was retained a few days before the February 28, 2013 de
novo trial date in the county court at law. Zavitsanos then hired Hollenbeck, from
Wright & Close to prepare Citgo’s petition for writ of mandamus questioning the
jurisdiction of the county court at law. Both attorneys and their staff were under
significant time constraints to evaluate all of the evidence and prepare the motions and
original proceedings filed on behalf of Citgo.
VI. Nature and length of the professional relationship with the client
The A.Z.A. law firm and the Chamberlain law firm had established relationships
with Citgo. Close & Wright and West, Webb did not.
VII. Experience, reputation, and ability of the lawyer or lawyers performing the services
The primary attorneys from each law firm representing Citgo had at least 20 years’
experience, primarily practiced in civil litigation, handled forcible entry and detainer
cases, or specialized in appellate law. Each vouched for the abilities of the associates or
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 19
other attorneys and staff assisting in the preparation for this case.
VIII. Whether the fee is fixed or contingent on results obtained or uncertainty of collection
before the legal services have been rendered
Citgo was charged an hourly rate by each of the attorneys involved and their
staff. There was no evidence that these attorneys would not be paid by Citgo. From the
evidence, it also appears that some of the attorney’s fees which were related to this
matter and charged in the firm’s invoices to Citgo were not included in the attorney’s
fees Citgo sought from Astin.
Application
After reviewing all the testimony and evidence presented, the trial court reduced
the hourly rate charged by each of Citgo’s attorneys to a rate that was within the range
charged in Brazos County. Thus, the amount of attorney’s fees awarded was
substantially less than that requested.
The thrust of Astin’s argument on appeal is that the fees were not reasonable and
necessary because Citgo’s attorneys filed more documents than necessary and made the
case more complicated than it had to be. Further, Astin argues that the fees were not
reasonable and necessary because Citgo retained eight attorneys to Astin’s one attorney.
There was no finding by any court that Citgo’s motions and original proceedings
were frivolous. Just as Astin’s attorney vigorously represented Astin by, for example,
objecting to Citgo’s attempted introduction of attorney’s fees affidavits and amending
Astin’s petition on the day of trial to include another ground for evicting Citgo, so too
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 20
were Citgo’s attorneys vigorously representing Citgo. Simply because Citgo did not
persuade the courts to agree with its position in several of its motions or original
proceedings does not mean that attorney’s fees could not be recouped when Citgo was
successful in defending the forcible entry and detainer action filed by Astin. Further,
there is no requirement that each party to a lawsuit have equal number of attorneys.
That Astin could cause Citgo to believe it needed more attorneys to address the issues
raised in this action is more of a recognition of the resourcefulness of Astin’s attorney
rather than a requirement that Citgo attempt to defend itself with the same number of
attorneys.
Conclusion
After reviewing the testimony presented at the many hearings in this proceeding
in the county court at law and the documents filed in this case and in light of the Arthur
Anderson factors, there is factually sufficient evidence to support the trial court’s
judgment for attorney’s fees; and we cannot say that the trial court abused its discretion
in awarding attorney’s fees in that amount as reasonable and necessary. Thus, Astin’s
eighth and ninth issues are overruled.3
Lastly, Astin argues that the trial court erred in awarding Citgo out-of-pocket
3 We nevertheless take notice that the judgment was never amended to reflect the amount of attorney’s
fees as determined by the trial court in its Amended Nunc Pro Tunc Findings of Fact and Conclusions of
Law. Accordingly, we will modify the judgment to reflect the amount of attorney’s fees, out-of-pocket
expenses, and costs to be $163,164.23 ($154,110 in attorney’s fees and $9,054.23 in out-of-pocket expenses
and costs) as reflected by the trial court’s Amended Nunc Pro Tunc Findings of Fact and Conclusions of
Law. See TEX. R. APP. P. 43.2(b); In the Interest of M.D., 333 S.W.3d 600, 601 (Tex. App.—Dallas 2007, no
pet.).
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 21
expenses because neither Rule 752 of the Rules of Civil Procedure nor Section 24.006 of
the Property Code provides for the recovery of out-of-pocket expenses. We disagree
with Astin’s argument.
Rule 752 provides that damages suffered for withholding or defending
possession during the appeal to the county court may be pled, proved, and recovered.
TEX. R. CIV. P. 752. Such damages include, but are not limited to, loss of rentals during the
pendency of the appeal, reasonable attorneys' fees in the justice and county courts, and
court costs for the prevailing party. Id. Thus, damages pursuant to Rule 752 are for
expenses and losses related to maintaining or obtaining possession. Rushing v. Smith,
630 S.W.2d 498, 500 (Tex. App.—Amarillo 1982, no writ). There is nothing in the record,
and Astin cites to nothing, that suggests the expenses awarded were not related to
maintaining Citgo’s possession of its leased property. Accordingly, the trial court did
not err in awarding Citgo it’s out-of-pocket expenses. Astin’s tenth issue is overruled.
DECLARATIONS IN JUDGMENT
In its second issue, Astin contends the trial court erred in making declarations in
its judgment other than the right to immediate possession. Astin argues the effect of
declarations other than possession in a forcible entry and detainer suit. It does not
present any argument as to why the inclusion of these types of declarations in a
judgment is error. Accordingly, this issue is improperly briefed and presents nothing
for review. See TEX. R. APP. P. 38.1(i). Even if these declarations were error, Astin is not
Astin Redevelopment Group, LLC v. Citgo Petroleum Corp. Page 22
harmed by such declarations in this proceeding because the findings did not cause the
rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1) (“No judgment may be
reversed…unless the court of appeals concludes that the error complained of…probably
caused the rendition of an improper judgment….”). Astin’s second issue is overruled.
CONCLUSION
Having overruled each of Astin’s issues on appeal, but noting a discrepancy
between the trial court’s judgment and Amended Nunc Pro Tunc Findings of Fact and
Conclusions of Law, we modify the trial court’s judgment and affirm the judgment as
modified.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed December 18, 2014
[CV06]
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