Scott Van Dyke v. Builders West, Inc. , 565 S.W.3d 336 ( 2018 )

Affirmed and Opinion filed August 14, 2018.
In The
Fourteenth Court of Appeals
NO. 14-16-00686-CV
SCOTT VAN DYKE, Appellant
V.
BUILDERS WEST, INC., Appellee
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2011-54019
OPINION
Scott Van Dyke appeals from a final judgment favoring Builders West, Inc.
Builders West sued Van Dyke for breach of contract, among other causes of action,
for nonpayment on a home renovation project. Van Dyke counter-sued, alleging
Builders West overcharged him and performed faulty work. A jury found for
Builders West on all claims, and the trial court rendered judgment in accordance
with the verdict, awarding actual damages of $321,368.12. The trial court
determined that reasonable fees for Builders West’s attorneys amounted to $590,750
and awarded that sum to Builders West as well.
In his appeal, Van Dyke contends that (1) the evidence was legally and
factually insufficient to sustain the jury’s finding that he breached the contract
because Builders West failed to offer expert testimony that it performed certain
electrical work in a good and workmanlike manner, (2) the trial court erred in
refusing to instruct the jury regarding Builders West’s contractual duty to supervise
the work of subcontractors, and (3) the trial court erred in awarding attorneys’ fees
to Builders West at a rate of $500 per hour when Builders West’s contract with its
attorneys required it to pay only $350 per hour unless it was awarded fees at the
higher rate by the trial court. In a contingent cross-appeal, Builders West asserts that
the trial court erred in refusing to award any fees for work performed by attorneys
from a particular firm that represented Builders West.
Because Van Dyke’s first two issues fail to address portions of the jury charge
that support the judgment, we overrule those issues. In addition, we conclude that
the trial court did not err in awarding attorneys’ fees to Builders West at the rate of
$500 per hour because the relevant statute does not limit Builders West’s recovery
to fees actually incurred. We therefore overrule Van Dyke’s third issue and need not
address Builders West’s contingent cross-appeal. We affirm the trial court’s
judgment.
BACKGROUND
In 2008, Van Dyke hired Builders West as general contractor on an extensive
home renovation project. The parties’ one-page contract stated that Builders West
would be paid for “labor and materials plus Contractor’s Fee of 20% to cover
overhead, supervision, and profit.” The contract did not specify the scope of the work
to be done or a total price to be paid but instead simply set forth hourly rates for
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various subcontractors.
The project was to be completed in three phases. After several months of
work, Van Dyke requested an estimate for completion of the first two phases, which
Builders West provided. Eight months later, Van Dyke refused to pay invoices for
work performed in August through November 2009. The unpaid invoices totaled
$335,340.65. Van Dyke particularly complained regarding the amount charged for
work done by electrical subcontractor Facilities Electric, Inc. (“FEI”).
After negotiations proved fruitless, Builders West left the job and ultimately
filed suit against Van Dyke for nonpayment of the invoices. Builders West’s causes
of action included breach of contract, substantial performance, and quantum meruit.
Van Dyke counter-sued, alleging breach of contract, violations of the Deceptive
Trade Practices Act, and breaches of express and implied warranties.
Key points of contention at trial concerned the nature of the “supervision”
component of the contract and the sufficiency of Builders West’s performance of
that component. Kurt Lobpries, a co-owner of Builders West, testified that he
considered five percent of the amount paid under the contract to be for supervision.
Day-to-day onsite supervision was actually provided by a carpenter on the job who
was paid directly by Van Dyke and not by Builders West. There was evidence,
however, that Lobpries acted as project manager, scheduling and coordinating the
subcontractors’ work, occasionally making onsite inspections, and communicating
with the onsite supervisor.
Another significant dispute at trial concerned the quality of the electrical work
performed by subcontractor FEI. Van Dyke called an expert witness to testify
specifically regarding perceived deficiencies in the electrical work. Builders West
defended the electrical work through several witnesses but did not call its own expert
witness to testify on this subject.
3
At the conclusion of trial, the trial court submitted a 22-question charge to the
jury that contained each of the causes of action listed above, along with various
subsidiary issues. Because our disposition of Van Dyke’s first two issues turns on
the structure of the charge, we explain that structure in some detail.
Builders West’s claim for breach of contract was submitted in questions 1, 2,
3, and 6. Question 1 asked whether Van Dyke failed to comply with the parties’ one-
page agreement. Question 2 was contingent on a “yes” answer to question 1 and
inquired whether Van Dyke’s failure to comply was excused by a prior failure to
comply by Builders West. Question 3 asked whether the estimate Builders West
provided regarding completion of phases 1 and 2 effectively modified the parties’
agreement. And question 6 was the damages submission for Builders West’s breach
of contract claim.
Van Dyke’s claim for breach of contract was submitted in questions 4, 5, and
9. Question 4 asked whether Builders West failed to comply with the agreement. An
instruction under question 4 informed the jury that Builders West was required to
perform its obligations under the agreement “in a good and workmanlike manner.”
As will be discussed in more detail below, it is important to note that question 2—
asking whether Van Dyke’s failure to comply was excused by Builders West’s prior
noncompliance—did not contain a similar instruction. Additionally, Van Dyke
objected to question 4—but not question 2—on the ground that it failed to instruct
the jury regarding Builders West’s contractual duty to supervise the work of
subcontractors. The trial court overruled the objection. Van Dyke did not object to
question 2 on this ground. Question 5 was contingent on a “yes” answer to question
4 and asked whether Builders West’s failure to comply was excused by various
theories, including waiver, ratification, and acceptance of benefits. Question 9 was
the damages submission for Van Dyke’s breach of contract claim.
4
Builders West’s claim of substantial performance was submitted in questions
7 (“Did Builders West, Inc. substantially perform the Agreement?”) and 8
(damages). Its claim of quantum meruit was submitted in questions 10 (“Did
Builders West, Inc. perform compensable work for Scott Van Dyke for which it was
not compensated?”) and 11 (damages). Van Dyke’s other claims (DTPA violations
and breaches of warranties) were also submitted but play no role in this appeal.
The jury found for Builders West on all claims, found against Van Dyke on
his claims and defenses, and found damages to be $321,368.12 as to each of Builders
West’s claims for breach of contract, substantial performance, and quantum meruit.
The trial court subsequently awarded this amount to Builders West as actual
damages in the judgment.
Builders West’s entitlement to attorneys’ fees was tried to the court by
agreement. During the litigation, Builders West was represented by lawyers from
two different law firms: Rusty Hardin & Associates (“RHA”), with which Builders
West had a direct contractual relationship, and Langley & Banack, which was paid
by Builders West’s insurer. In this phase of the trial, Van Dyke did not contest the
reasonableness of the fees requested for RHA’s services. Instead, Van Dyke argued
that such fees were not necessarily incurred at a rate of $500 per hour because
Builders West’s contract with RHA only obligated Builders West to pay at the rate
of $350 per hour unless the trial court awarded fees at the higher rate. The trial court
awarded Builders West fees for the services of RHA calculated at the rate of $500
per hour but did not award any fees for services performed by Langley & Banack.
ANALYSIS
I. Van Dyke’s sufficiency challenge fails because the relevant parts of the
charge did not require good and workmanlike performance.
In his first issue, Van Dyke purports to challenge the legal and factual
5
sufficiency of the evidence to support Builders West’s recovery on its claim for
breach of contract. We conclude that Van Dyke’s challenge fails for three reasons.
First, although Van Dyke contends insufficient evidence was presented of good and
workmanlike performance, the jury charge regarding this claim did not require that
evidence. Second, even if Builders West failed to prove its claim for breach of
contract, Van Dyke failed to challenge in his original brief two other jury findings
that support the judgment. And third, in any event, Van Dyke’s argument does not
undermine those other findings because the charge likewise did not require evidence
of good and workmanlike performance to make those findings.
A. The charge questions regarding Builders West’s claim for breach
of contract did not require good and workmanlike performance.
According to Van Dyke, Builders West could not prevail on its claim that Van
Dyke breached the contract by nonpayment because Builders West did not establish
through expert testimony that its electrical subcontractor, FEI, performed in a good
and workmanlike manner. Van Dyke points out that a party to a contract generally
is not permitted to recover for breach unless the party can establish that it tendered
performance of its own obligations under the contract or was excused from doing
so. See, e.g., Petroleum Workers Union of the Republic of Mex. v. Gomez, 503
S.W.3d 9, 39 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (listing elements of
cause of action for breach of contract). He further notes that home construction
contracts typically are read to include an implied warranty that all work will be
completed in a good and workmanlike manner. See, e.g., Gonzales v. Sw. Olshan
Found. Repair Co., 400 S.W.3d 52, 56 (Tex. 2013) (explaining that the implied term
is a “gap-filler” for when parties have not included their own terms regarding the
quality of the work).1
1
Van Dyke additionally argues that expert testimony was necessary to aid the jury in
6
Although these statements of the law are generally correct, when a case is
tried to a jury and the party complaining on appeal did not object to the charge, the
sufficiency of the evidence is measured against the charge actually submitted, not
some other law left unidentified in the charge. See Osterberg v. Peca, 12 S.W.3d 31,
55 (Tex. 2000); Critical Path Res., Inc. v. Cuevas, No. 14-16-00036-CV, 2018 WL
1532343, at *18, 26 (Tex. App.—Houston [14th Dist.] Mar. 29, 2018, no pet. h.).
Here, none of the questions that comprised the submission of Builders West’s claim
for breach of contract contained a requirement that Builders West prove its
subcontractors’ work was done in a good and workmanlike manner, and Van Dyke
did not object to the absence of such an instruction in these questions.
To prevail on a claim for breach of contract, a party must establish the
following elements: (1) a valid contract existed between the plaintiff and the
defendant, (2) the plaintiff tendered performance or was excused from doing so, (3)
the defendant breached the terms of the contract, and (4) the plaintiff sustained
damages as a result of the defendant’s breach. Petroleum Workers, 503 S.W.3d at
39. The first element—the existence of a contract—was undisputed in this case.
Question 1 asked whether Van Dyke breached the agreement. Question 2, which was
contingent on an affirmative finding in response to question 1, addressed Builders
West’s performance2 and submitted Van Dyke’s defense of prior material breach by
assessing the quality of the electrical work at issue, citing Schwartz v. City of San Antonio ex rel.
City Public Service Board of San Antonio, No. 04-05-00132-CV, 2006 WL 285989, at *4 (Tex.
App.—San Antonio Feb. 8, 2006, pet. denied) (mem. op.). Builders West disagrees. Because we
conclude the jury charge did not require evidence that the electrical work was performed in a good
and workmanlike manner, we need not address the circumstances in which expert testimony
regarding the quality of electrical work is necessary. See generally FFE Transp. Servs., Inc. v.
Fulgham, 154 S.W.3d 84, 90-91 (Tex. 2004) (explaining that whether a particular matter requires
expert testimony is a question of law reviewed de novo).
2
The jury also found in response to question 7 that Builders West substantially performed
the agreement. Like question 2, question 7 included no instruction that Builders West and its
subcontractors were required to perform in a good and workmanlike manner.
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asking whether Van Dyke’s failure to comply was excused by a prior failure to
comply by Builders West.3 Question 6, which was also contingent on an affirmative
finding to question 1, asked about damages. As stated, none of these questions
instructed the jury that Builders West and its subcontractors were required to
perform in a good and workmanlike manner, and Van Dyke did not object regarding
the absence of such an instruction.4 See generally Bayer Corp. v. DX Terminals, Ltd.,
214 S.W.3d 586, 602 (Tex. App.—Houston [14th Dist.] 2006, pet. denied)
(discussing preservation of error for charge complaints).
The only question that inquired whether Builders West and its subcontractors
performed in a good and workmanlike manner was question 4, which was part of the
submission of Van Dyke’s claim that Builders West breached the contract. The jury
answered “no” in response to question 4. Of course, this failure to find that Builders
West and its subcontractors did not perform in a good and workmanlike manner does
not amount to an affirmative finding that they did. E.g., Philadelphia Indemnity Ins.
Co. v. White, 490 S.W.3d 468, 488 (Tex. 2016). But no such affirmative finding was
required by the charge questions submitted without objection regarding Builders
3
We note that the organization of the breach-of-contract portions of the charge and the
wording of question 2 were not in keeping with the organization and wording recommended in the
Texas Pattern Jury Charges. When faced with competing claims of breach, the Pattern Jury
Charges recommend asking, in sequence, whether each party failed to comply with the agreement
and then, if the jury answers “yes” to both of those questions, asking which party failed to comply
first. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business
PJC 101.2 cmt. (2016). Here, as explained in the text, the trial court presented the parties’ claims
for breach of contract in two distinct sets of questions that do not intersect. Van Dyke did not
object to this manner of submission or to the wording of question 2, nor does he specifically
complain about them on appeal. See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 481 (Tex.
2017) (“[A] defendant must preserve error by objecting when an independent theory of recovery
is submitted defectively.”).
4
Cf. Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges:
Business PJC 101.2 cmt. (2016) (recommending inclusion of instructions when there is an
obligation to perform in a good and workmanlike manner).
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West’s claim that Van Dyke breached the contract by failing to pay.
Question 4 is not related to Builders West’s claim that Van Dyke breached the
contract for several reasons. To begin with, question 4 is not made contingent upon
or otherwise expressly tied to any of the questions concerning Builders West’s claim.
Furthermore, question 4 does not contain any time element—i.e., it does not ask
whether any breach by Builders West occurred prior to Van Dyke’s breach. In order
for any breach by Builders West to have excused a breach by Van Dyke, Builders
West’s breach must have occurred prior to Van Dyke’s breach. See Petroleum
Workers, 503 S.W.3d at 39. In contrast, question 2 is expressly tied to other questions
submitting Builders West’s claim that Van Dyke breached the contract, and it
contains the requisite time element.
In short, question 4 has no relevance to Builders West’s recovery for breach
of contract, and question 2 did not require performance to be in a good and
workmanlike manner. Because the charge questions submitting Builders West’s
claim did not include a requirement of good and workmanlike performance, we may
not consider that requirement in reviewing the sufficiency of the evidence to support
the jury’s answers. We therefore reject Van Dyke’s argument that the evidence is
insufficient because Builders West provided no expert testimony that FEI’s work
was performed in a good and workmanlike manner.
B. Van Dyke’s opening brief does not challenge the jury’s findings for
Builders West on its other claims.
Even if Van Dyke were correct that Builders West provided insufficient
evidence to support recovery for breach of contract, the judgment would still be
supported by the jury’s findings on Builders West’s substantial performance and
quantum meruit claims. Van Dyke did not challenge the jury’s affirmative findings
on these claims in his opening brief. See, e.g., Miller v. Debo Homes, LLC, No. 14-
9
15-00004-CV, 2016 WL 5399507, at *3 (Tex. App.—Houston [14th Dist.] Sept. 27,
2016, no pet.) (mem. op.) (affirming judgment supported by unchallenged,
independent jury finding and on that basis overruling challenge to other jury
findings); Aquarium Env’ts, Inc. v. Elgohary, No. 01–12–01169–CV, 2014 WL
1778266, at *3 (Tex. App.—Houston [1st Dist.] May 1, 2014, pet. denied) (mem.
op.) (holding any error in submitting DTPA claim was harmless where appellant did
not challenge jury finding on breach of contract, which was an independent ground
supporting liability and damages); see also Melartin v. CR & R, Inc., No. 14-05-
00519-CV, 2009 WL 972484, at *1 n.1 (Tex. App.—Houston [14th Dist.] Mar. 24,
2009, no pet.) (mem. op.) (“We do not consider arguments raised for the first time
in a reply brief.”). As stated above, the jury found the same amount of damages for
all three claims. These unchallenged findings therefore support the judgment. See,
e.g., Miller, 2016 WL 5399507, at *3; Aquarium Env’ts, 2014 WL 1778266, at *3.
C. The charge questions regarding Builders West’s other claims did
not require good and workmanlike performance.
In his reply brief, Van Dyke asserts that his arguments regarding Builders
West’s claim for breach of contract also apply to its claims regarding substantial
performance and quantum meruit. In support, he cites authority explaining that briefs
should be construed liberally and the statement of an issue should be treated as
covering every subsidiary question fairly included. See Tex. R. App. P. 38.1(f);
Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012). Although we agree
with these premises, we disagree that a challenge to Builders West’s success on its
substantial performance and quantum meruit claims is fairly included in Van Dyke’s
argument in his opening brief that “Builders West Could Not Prevail On Its Contract
Claim . . . .” Yet even if we were to apply Van Dyke’s arguments in his opening
brief to the jury’s substantial performance and quantum meruit findings, Van Dyke
still could not obtain reversal of the judgment.
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As set forth above, Van Dyke’s argument under his first issue is that Builders
West could not prevail on its claim for breach of contract because it did not provide
expert evidence that FEI performed in a good and workmanlike manner. Neither the
jury question regarding substantial performance (question 7) nor the question
regarding quantum meruit (question 10) required proof of performance in a good
and workmanlike manner, and Van Dyke did not object to these omissions in the
trial court. Therefore, evidence of good and workmanlike performance is not
necessary to support the jury’s answers to those questions. See Osterberg, 12 S.W.3d
at 55 (“[I]t is the court’s charge, not some other unidentified law, that measures the
sufficiency of the evidence when the opposing party fails to object to the charge”);
see also Critical Path, 2018 WL 1532343, at *18, 26. For the foregoing reasons, we
overrule Van Dyke’s first issue.
II. Van Dyke’s complaint of charge error in refusing to give an instruction
does not affect the parts of the charge supporting the judgment.
In his second issue, Van Dyke contends that the trial court erred in refusing to
instruct the jury in question 4 regarding Builders West’s contractual duty to
supervise the work of its subcontractors.5 Van Dyke asserts that because the trial
court instructed the jury in question 4 on the implied requirement that Builders West
perform in a good and workmanlike manner but did not instruct the jury regarding
the express obligation to supervise, it incorrectly suggested to the jury that poor work
quality was the only permissible basis for finding that Builders West breached the
contract.
As explained in detail above, question 4 was part of the series of questions
that submitted Van Dyke’s own claim that Builders West breached the contract. In
5
As mentioned, the parties’ contract stated that Builders West was to be paid for “labor
and materials plus Contractor’s Fee of 20% to cover overhead, supervision, and profit” (emphasis
added).
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a post-submission letter brief, Van Dyke clarified that he is not appealing the portion
of the judgment ordering that he take nothing on his affirmative causes of action; he
is only appealing the part of the judgment awarding damages and attorneys’ fees to
Builders West. Question 4 is not material to the award of damages and attorneys’
fees to Builders West. Accordingly, Van Dyke has expressly waived his second
issue. Cf. Energy Maint. Servs. Gp. I, LLC v. Sandt, 401 S.W.3d 204, 221 (Tex.
App.—Houston [14th Dist.] 2012, pet. denied) (giving effect to jury findings where
appellants conceded in reply brief that they did not challenge the findings in their
opening brief).
We further note that the arguments Van Dyke makes in his second issue
cannot be read as applying to question 2 of the jury charge, which submitted Van
Dyke’s defense that Builders West had previously breached the contract. Van Dyke
did not object to question 2 on this basis in the trial court, as he did to question 4,
and he did not request that an instruction on supervision accompany question 2, as
he did for question 4. See, e.g., Bayer Corp., 214 S.W.3d at 602 (discussing
preservation of error for charge complaints). Moreover, question 2 did not instruct
the jury regarding good and workmanlike performance, so it did not limit the bases
on which the jury could have found a breach by Builders West. We overrule Van
Dyke’s second issue.
III. Builders West’s recovery of attorneys’ fees is not limited to the amount
incurred.
In his third issue, Van Dyke challenges the trial court’s award of attorneys’
fees to Builders West at the rate of $500 per hour. In Texas, attorney’s fees are
recoverable in litigation only if expressly authorized by a contract or statute. Tucker
v. Thomas, 419 S.W.3d 292, 295 (Tex. 2013). In this case, Builders West sought fees
pursuant to chapter 38 of the Texas Civil Practice and Remedies Code. Tex. Civ.
12
Prac. & Rem. Code § 38.001-.006. Section 38.001 of that chapter provides, in
relevant part, that “[a] person may recover reasonable attorney’s fees from an
individual or corporation, in addition to the amount of a valid claim and costs, if the
claim is for: (1) rendered services; (2) performed labor; (3) furnished material; . . .
or (8) an oral or written contract.” Id. § 38.001. An award of attorney’s fees must be
supported by evidence that the fees are reasonable and necessary for the prosecution
of the suit. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991).
As mentioned above, Van Dyke does not contest the reasonableness of the
fees awarded and he does not contest the necessity of the services performed;
instead, he specifically complains only that Builders West did not actually incur fees
at the rate of $500 per hour. In doing so, Van Dyke misreads the requirements for an
award of attorneys’ fees under Chapter 38.
Van Dyke’s argument is premised on language in the fee agreement between
Builders West and RHA, one of the law firms representing it. This agreement
contains the following paragraph explaining the hourly rate to be charged:
Even though we are charging $500 per hour for our attorney time, we
are agreeing to seek payment from Builders West for only $350 per
hour. We will seek to have the jury and/or judge award Builders West
the entire $500 per hour fee from Scott Van Dyke. If and when Builders
West is awarded and paid more than $350 per hour for our legal fees,
Builders West agrees to pay to RH&A any award for RH&A fees over
$350 per hour, and $350 per hour will be apportioned to Builders West
to make the company whole for those amounts already paid to RH&A.
According to Van Dyke, he should not be required to pay fees at the $500 rate instead
of the $350 rate because Builders West was not obligated to pay the higher rate
unless it first received payment from Van Dyke for the higher amount. In other
words, Van Dyke insists that because Builders West never incurred fees at the higher
rate, it is only entitled to be awarded fees calculated at the lower rate.
13
The parties do not cite, and we have not discovered, any Texas cases
addressing a request for attorneys’ fees under a contract identical to the one
presented here. In many contexts, however, Texas courts have held that a party
entitled to attorneys’ fees need not show that the fees requested were actually
incurred unless the statute authorizing a fee award requires such proof. See, e.g.,
Gluck v. Hadlock, No. 02–09–00411–CV, 2011 WL 944439, at *5 (Tex. App.—Fort
Worth March 17, 2011, no pet.) (mem. op.) (affirming award of fees even though
attorney agreed not to charge client); In re Estate of Johnson, 340 S.W.3d 769, 787
(Tex. App.—San Antonio 2011, pet. denied) (holding party could recover fees even
though its fees had been paid by a third-party trust); AMX Enters., L.L.P. v. Master
Realty Corp., 283 S.W.3d 506, 517-21 (Tex. App.—Fort Worth 2009, no pet.)
(affirming award under chapter 38 of in-house counsel fees based on market value
and stating “proof of fees actually incurred or paid are not prerequisites to the
recovery of attorney’s fees in Texas”); Brown v. Comm’n for Lawyer Discipline, 980
S.W.2d 675, 683–84 (Tex. App.—San Antonio 1998, no writ) (holding state bar
represented by private lawyers on a pro bono basis may recover reasonable
attorneys’ fees); Beckstrom v. Gilmore, 886 S.W.2d 845, 847 (Tex. App.—Eastland
1994, writ denied) (holding attorney representing himself pro se may recover fees
under chapter 38); Tuberquia v. Jamison & Harris, No. A14–91–00055–CV, 1991
WL 260344, at *2 (Tex. App.—Houston [14th Dist.] Dec. 12, 1991, no writ) (not
designated for publication) (holding law firm represented by one of its own attorneys
was entitled to recover attorney’s fees for the time and effort expended); cf. Cruz v.
Van Sickle, 452 S.W.3d 503, 524 & n.36 (Tex. App.—Dallas 2014, pet. denied)
(distinguishing Gluck, AMX, Brown, and Tuberquia because statute at issue
expressly required that fees be incurred).
In keeping with this precedent, we reject Van Dyke’s assertion that Builders
14
West must have actually incurred fees at the higher rate in order to recover fees at
that rate. Chapter 38 contains no such requirement.6 Van Dyke also argues as a
policy matter that permitting recovery under fee contracts such as that between
Builders West and RHA would promote fee inflation and untether fees from market
realities. But potential excesses in a contract such as this are held in check by the
same requirements that have always held awards of attorney’s fees in check under
Chapter 38: the fees must be proven reasonable and necessary for the prosecution of
the suit. See Stewart Title, 822 S.W.2d at 10; Trevino v. City of Pearland, 531
S.W.3d 290, 297 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Arthur
Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (“[W]e
cannot agree that the mere fact that a party and a lawyer have agreed to a contingent
fee means that the fee arrangement is in and of itself reasonable.”); Classic C Homes,
Inc. v. Homeowners Mgmt. Enterprises, Inc., No. 02-14-00243-CV, 2015 WL
5461517, at *5 (Tex. App.—Fort Worth Sept. 17, 2015, no pet.) (making same point
in case where fees were sought under Chapter 38). If Van Dyke deems those
statutory checks insufficient, his recourse is to the Legislature, not this Court.
Here, Van Dyke conceded that fees of $500 per hour were reasonable and that
the work performed was necessary. See generally First Bank v. DTSG, Ltd., 472
S.W.3d 1, 9 (Tex. App.—Houston [14th Dist.] 2015) (assessing evidence for a
reasonable fee for the necessary services of party’s attorneys), rev’d on other
grounds sub nom. First Bank v. Brumitt, 519 S.W.3d 95 (Tex. 2017); AMX Enters.,
283 S.W.3d at 520 (same). Because nothing more was required to support the trial
6
We further note that because attorney’s fees under chapter 38 are not required to be
incurred before being awarded, the trial court’s statement in the judgment that the fees were
“incurred” is mere surplusage. See, e.g., Prime Tree & Landscaping Servs. v. Americon Servs. Co.,
No. 01-09-00779-CV, 2011 WL 947004, at *4 (Tex. App.—Houston [1st Dist.] Mar. 17, 2011, no
pet.) (explaining that harmless surplusage does not affect validity of judgment).
15
court’s fee award, we overrule Van Dyke’s third issue.
CONCLUSION
Having overruled each of Van Dyke’s issues, we need not reach Builders
West’s contingent cross-appeal. See Tex. R. App. P. 47.1. We affirm the trial court’s
judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices Jamison, Busby, and Brown.
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