Taylor Morrison of Texas, Inc. and Taylor Woodrow Communities-League City, Ltd. v. Michael Fulcher and Lisa Fulcher ( 2022 )

NUMBER 13-20-00332-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
TAYLOR MORRISON OF TEXAS,
INC. AND TAYLOR WOODROW
COMMUNITIES-LEAGUE CITY, LTD., Appellants,
v.
MICHAEL FULCHER AND
LISA FULCHER, Appellees.
On appeal from the 10th District Court
of Galveston County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Silva
Memorandum Opinion by Justice Hinojosa
This is an appeal from a judgment entering an arbitration award. By two issues,
appellants Taylor Morrison of Texas and Taylor Woodrow Communities—League City,
Ltd. (collectively, Taylor Morrison) contend that the trial court erred by: (1) denying vacatur
of the final arbitration award and confirming the final arbitration award and (2) awarding
post-judgment interest on appellees’ conditional attorneys’ fees at the time of its
judgment. We affirm in part, and reverse and remand in part.
I. BACKGROUND 1
In 2015, appellees Michael and Lisa Fulcher signed a Purchase Agreement with
Taylor Morrison to construct their new home in League City, Texas. The Purchase
Agreement included an arbitration clause which provided that:
Any and all claims, controversies, breaches or disputes by or between the
parties hereto, arising out of or related to this purchase agreement, the
property, the subdivision[,] or community of which the property is a
part . . . whether such dispute is based on contract, tort, statute, or
equity . . . shall be arbitrated pursuant to the Federal Arbitration Act [(FAA)].
The arbitration clause also included the following provisions:
(e) In the event any dispute arises under the terms of this Purchase
Agreement or in the event of the bringing of any arbitration action by
a party hereto against another party . . . then all fees and costs shall
be borne separately between the parties, including but not limited to
all attorneys’ fees and expert witness costs resulting from the
Dispute . . . .
(f) The arbitrator shall be authorized to provide all recognized remedies
available in law or in equity for any cause of action that is the basis
of the arbitration.
On December 29, 2017, the Fulchers filed suit against Taylor Morrison, alleging
their home had a “severe, pervasive mold infestation caused by construction defects.”
1 This case is before this Court on transfer from the Fourteenth Court of Appeals in Houston
pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the
authority to transfer cases from one court of appeals to another at any time that there is “good cause” for
the transfer).
2
The Fulchers asserted breach of contract, Deceptive Trade Practices Act (DTPA), breach
of implied warranties, and negligent construction causes of action. The Fulchers also
sought economic damages and attorney’s fees under chapter 27 of the property code (the
Residential Construction Liability Act (RCLA)), chapter 38 of the civil practice and
remedies code (attorney’s fees), chapter 17 of the business and commerce code (DTPA),
and common law in their petition. Taylor Morrison filed an original answer and verified
denial on January 29, 2018, and filed a plea in abatement and motion to compel binding
arbitration on April 26, 2018.
The parties went to arbitration. After a four-day hearing which included eyewitness
testimony and the admission of evidence, the arbitrator issued a $517,098.01 award to
the Fulchers. 2 The arbitrator set forth that his award of $166,104.58 in attorney’s fees,
plus a conditional award of $100,000 should the matter be appealed to the court of
appeals and appellees prevail, and an additional $25,000 should the matter be appealed
to the Texas Supreme Court and appellees prevail again, was based on guidance from
2 The total award included the following:
1. Mold Remediation: $69,983.10
2. Build Back of Structure: $159,530.63
3. Cost to Remedy Heating, Ventilation, and Air Conditioning Defects: $12,000.00
4. Content Replacement: $4,920.00
5. Alternative Living Arrangements: $16,800.00
6. Expert Fees: $32,968.86
7. Reasonable and Necessary Attorney Fees: $166,104.58, plus a conditional award of $100,000
should the matter be appealed to the Court of Appeals and appellees prevail, and an additional
$25,000 should the matter be appealed to the Texas Supreme Court and appellees prevail
again.
8. Court Costs: $5,550.29
9. Pre-Judgment Interest: $24,913.36
10. Arbitration Fees: $24,327.19
3
D.R. Horton-Tex., Ltd. v. Bernhard, 423 S.W.3d 532, 534 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied). The arbitrator also granted $32,968.86 in expert witness fees
and $24,327.19 in arbitration fees.
In explaining the award of attorney’s fees, the arbitrator noted that, under the
Purchase Agreement, he was “authorized to provide all recognized remedies available in
law or in equity for any cause of action that is the basis of arbitration.” He explained:
It is true that the Texas Supreme Court has stated that “[i]mplied warranties
are created by operation of law and are grounded more in tort than in
contract.” JCW Electronics, Inc. v. Garza, 257 S.W.3d 701, 704 (Tex. 2008)
(citing La Sara Grain Co. v. First Nat’l Bank, 673 S.W.2d 558, 565 (Tex.
1984) and other earlier decisions for this proposition). However, the court
explained in JCW Electronics that “[c]onceptually, the breach of an implied
warranty can either be in contract or in tort depending on the
circumstances.” ld. As the court explained, “[t]he precise nature of the claim
is ordinarily identified by examining the damages alleged: when the
damages are purely economic, the claim sounds in contract, but a breach
of implied warranty claim alleging damages for death or personal injury
sounds in tort.” ld. at 705 (citations omitted). Here, the Claimants[’] damages
are economic. Thus, the [attorney’s fee] claim sounds in contract.
The Fulchers filed an application to confirm the arbitration award by entry of
judgment on January 8, 2020. Taylor Morrison, in response, filed a motion to vacate
arbitration award and its objections to entry of the proposed final judgment on February
13, 2020. Taylor Morrison argued that the arbitrator exceeded his powers because his
award contained “monetary awards to [the Fulchers] for their fees and costs, including
attorney’s fees, expert witness costs, court costs, and arbitration fees” which were outside
the bounds of the arbitration agreement. Taylor Morrison specifically referred to language
from the Purchase Agreement which stated that “all fees and costs shall be borne
separately between the parties, including but not limited to all attorneys’ fees and expert
4
witness costs resulting from the Dispute.” Taylor Morrison requested the following relief
in the alternative: (1) denial of the Fulchers’ request to confirm the arbitration award; (2) to
vacate the entire award as unenforceable because the arbitrator exceeded his powers;
(3) to vacate those portions of the award which exceeded the Purchase Agreement
(attorney’s fees and expert fees); (4) to order a rehearing before a new arbitrator who
would abide by the arbitration limitations; (5) to sustain its objections to the arbitrator’s
award; and/or (6) to delay entry of final judgment to allow further hearing to determine the
appropriate amount of a supersedeas bond so that Taylor Morrison could appeal.
The trial court summarily denied Taylor Morrison’s requests and adopted the
arbitrator’s complete award in its final judgment. The trial court also added the following
language to its final judgment: “[p]ost-judgment interest on any conditional awards that
vest subsequent to [the] entry of this judgment at the rate of five percent (5%) per annum.”
Taylor Morrison appeals.
II. SCOPE OF ARBITRATOR’S AUTHORITY
By its first issue, Taylor Morrison contends the trial court erred when it denied
vacatur of the final arbitration award and instead confirmed the arbitrator’s award in its
judgment. Taylor Morrison contends that “the [a]rbitrator exceeded his powers and
dispensed his own idea of justice” by awarding attorney’s fees through arbitration
($166,104.58), conditional attorney’s fees, expert witness costs ($32,968.86), and
arbitration fees ($24,327.19).
A. Standard of Review and Applicable Law
“We review de novo a trial court’s decision to confirm or vacate an arbitration
5
award.” Bernhard, 423 S.W.3d at 534 (citing Amoco D.T. Co. v. Occidental Petroleum
Corp., 343 S.W.3d 837, 844 (Tex. App.—Houston [14th Dist.] 2011, pet. denied)).
“Because Texas law favors arbitration, judicial review of an arbitration award is
extraordinarily narrow.” E. Tex. Salt Water Disposal Co., Inc. v. Werline, 307 S.W.3d 267,
271 (Tex. 2010). Therefore, an arbitrator’s award “upon matters submitted to them is
given the same effect as the judgment of a court of last resort. All reasonable
presumptions are indulged in favor of the award, and none against it.” CVN Grp., Inc. v.
Delgado, 95 S.W.3d 234, 238 (Tex. 2002) (quoting City of San Antonio v. McKenzie
Const. Co., 150 S.W.2d 989, 996 (Tex. 1941)).
The FAA requires a court to confirm an arbitration award unless the award is
“vacated, modified, or corrected as prescribed in sections 10 and 11” of the act. Nafta
Traders, Inc. v. Quinn, 339 S.W.3d 84, 91 n.30 (Tex. 2011); Guillen-Chavez v. ReadyOne
Indus., Inc., 588 S.W.3d 281, 286 (Tex. App.—El Paso 2019, pet. denied). Under the
FAA, a court may only vacate an arbitration award under four circumstances:
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or
either of them;
(3) where the arbitrators were guilty of misconduct in refusing to
postpone the hearing, upon sufficient cause shown, or in refusing to
hear evidence pertinent and material to the controversy; or of any
other misbehavior by which the rights of any party have been
prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly
executed them that a mutual, final, and definite award upon the
subject matter submitted was not made.
9 U.S.C.A. § 10(a).
6
Pertinent here is the applicability of §10(a)(4), “which requires vacatur when
arbitrators exceed their authority.” Nafta Traders, 339 S.W.3d at 93.
An arbitrator exceeds his authority when he disregards the contract and dispenses
his own idea of justice. See Townes Telecomms., Inc. v. Travis, Wolff & Co., 291 S.W.3d
490, 494 (Tex. App.—Dallas 2009, pet. denied); see generally Nafta Traders, 339 S.W.3d
at 95. However, “an arbitrator does not exceed her authority by committing a mistake of
law, but instead by deciding a matter not properly before her.” Bernhard, 423 S.W.3d at
534 (citing LeFoumba v. Legend Classic Homes, Ltd., No. 14-08-00243-CV, 2009 WL
3109875, at *3 (Tex. App.—Houston [14th Dist.] Sept. 17, 2009, no pet.) (mem. op.)); see
also Vargas v. Rigid Glob. Buildings, LLC, No. 14-20-00309-CV, __ S.W.3d. __, __, 2022
WL 2311620, at *4 (Tex. App.—Houston [14th Dist.] June 28, 2022, no pet. h.) (mem.
op.) (“Arbitrators exceed their power when they decide a matter not properly before
them.”). “Thus, the appropriate inquiry is not whether the arbitrator decided an
issue correctly, but instead whether [the arbitrator] had the authority to decide the issue at
all.” Id. (emphasis in original). This is because the bedrock principle that underscores the
appellate review of arbitration decisions is that “[a]rbitration is strictly a matter of consent.”
Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1415 (2019) (quoting Granite Rock Co. v.
Int’l Broth. of Teamsters, 561 U.S. 287, 299 n.6 (2010)). “[A]rbitrators wield only the
authority they are given,” and “they derive their ‘powers from the parties’ agreement to
forgo the legal process and submit their disputes to private dispute resolution.’” Id. at 1416
(quoting Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 682 (2010)).
Whatever agreement is ultimately formed, “the task for courts and arbitrators at bottom
7
remains the same: ‘to give effect to the intent of the parties.’” Id.; Stolt-Nielsen, 559 U.S.
at 684 (“It falls to courts and arbitrators to give effect to these contractual limitations, and
when doing so, courts and arbitrators must not lose sight of the purpose of [arbitration].”).
“To determine the parties’ intent, we examine the express language of their agreement.”
Americo Life, Inc. v. Myer, 440 S.W.3d 18, 22 (Tex. 2014).
Texas courts utilize the “essence test” in connection with whether an arbitrator has
exceeded his grounds for authority. See Myer v. Americo Life, Inc., 232 S.W.3d 401, 413
(Tex. App.—Dallas 2007, no pet.); see also JJ-CC, Ltd. v. Transwestern Pipeline Co., No.
14-96-1103-CV, 1998 WL 788804, at *4 (Tex. App.—Houston [14th Dist.] Nov. 12, 1998,
no pet.) (mem. op.) (holding that the arbitrator’s award “must have a basis that is at least
rationally inferable, if not obviously drawn, from the letter or purpose of the [agreement]”
(cleaned up)). Under the “essence test,” we inquire as to whether the basis for the award
“is rationally inferable” from the parties’ arbitration agreement. See Myer, 232 S.W.3d at
413; see also Vargas, 2022 WL 2311620, at *4 (holding that “[a]rbitrators do not exceed
their powers if the arbitration award has a basis that is at least rationally inferable, if not
obviously drawn, from the letter or purpose of the arbitration agreement”).
B. Analysis
1. Attorney’s Fees
In his final arbitration award, 3 the arbitrator in the Fulchers’ case explained that
D.R. Horton–Texas, Ltd. v. Bernhard authorized his award of attorney’s fees. 423 S.W.3d
at 534. In Bernhard, William and Nadia Bernhard filed suit against D.R. Horton–Texas for
3 The arbitrator issued a fourteen-page “Final Award” summarizing the four-day arbitration hearing,
including procedural history, key issues, expert witness testimony, damages, and legal defenses.
8
alleged construction defects of their residential home. Id. at 533. The Bernhards’ sales
contract included an arbitration agreement with the following provision: “Each party shall
bear the fees and expenses or [sic] counsel, witnesses and employees of such party, and
any other costs and expenses incurred for the benefit of such party.” Id.
The parties submitted to arbitration, and the Bernhard arbitrator ultimately granted
a damages award of $114,477.45, which included $31,027.93 in attorney’s fees. Id. The
Bernhard arbitrator concluded that the attorney’s fees were “economic damages” under
one of the Bernhards’ pleaded causes of action—the RCLA. Id. at 535; see TEX. PROP.
CODE ANN. § 27.004(g)(6) (allowing a claimant to recover “reasonable and necessary
attorney’s fees” as economic damages in a residential construction defect case). The
arbitrator noted that “[t]he Contract does not limit or expand the damages recovery rights
provided for by Chapter 27,” and therefore that this award was not precluded by the
arbitration agreement’s specific provision on attorney’s fees. Bernhard, 423 S.W.3d at
535. “When D.R. Horton objected to the award of attorney’s fees, the arbitrator again
explained, ‘The separate provision in the Contract for each party to bear its own attorney
fees necessarily, then, is qualified in terms of a Chapter 27 recovery.’” Id. Our sister court
agreed, concluding that the arbitrator’s imposition of attorney’s fees was proper because
the arbitration agreement did not “specifically prohibit an arbitrator from awarding
attorney’s fees as damages in accordance with the RCLA,” and instead, the agreement
“merely states that each party ‘shall bear the fees and expenses o[f] counsel.’” Id.
Taylor Morrison urges us to reject application of Bernhard. Taylor Morrison instead
requests that we consider Mitchell v. D.R. Horton-Emerald, Ltd. for guidance. 579 S.W.3d
9
135, 136 (Tex. App.—Houston [1st] 2019, pet. denied). In Mitchell, Daniel and Trisha
Mitchell sued their contractor, D.R. Horton, over defects in their new home’s foundation.
Id. Before trial, the parties entered into a partial settlement agreement whereby D.R.
Horton agreed to pay $60,000 in damages arising from the alleged defect but submitted
the issue of attorney and expert fees to a bench trial. Id. at 136–37. “The trial court ruled
that the Mitchells were not entitled to recover attorney and expert fees as a matter of law
because the [RCLA] is not an independent basis for the recovery of such fees.” Id. at 137.
The First Court of Appeals affirmed, holding that § 27.004 of the RCLA “does not permit
a plaintiff to recover attorney or expert fees in the absence of an underlying cause of
action providing for the recovery of such fees.” Id. at 140.
We note that Mitchell addressed and distinguished Bernhard in its analysis. See
id. at 139–40. First, in Mitchell, the homeowners asserted RCLA as their sole cause of
action. Here, the Fulchers also pleaded breach of warranty—a claim that the arbitrator
based the award upon. Cf. Mitchell, 579 S.W.3d at 139–40; see generally TEX. PROP.
CODE ANN. § 27.002 (“This chapter applies to . . . any action to recover damages or other
relief arising from a construction defect, except a claim for personal injury, survival, or
wrongful death or for damage to goods.”); Vision 20/20, Ltd. v. Cameron Builders, Inc.,
525 S.W.3d 854, 856 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“The RCLA
modifies claims for damages resulting from construction defects in residences by limiting
and controlling causes of action that otherwise exist. . . . The RCLA does not create a
cause of action but provides defenses and limitations on damages.”) (internal citations
omitted).
10
Second, the Mitchell Court held that the issue on appeal in Bernhard “was not
whether the arbitrator’s award was correct, but whether the arbitrator had authority to
make the award at all.” Id. at 139. It noted that the Bernhard Court held “that the arbitrator
did have authority to make the award while expressly declining to opine on whether the
arbitrator had correctly applied the [RCLA] to the facts of the case.” Id.
Because this is a transfer case from Houston’s Fourteenth Court of Appeals, we
are required to apply the precedent of the transferring court. See TEX. R. APP. P. 41.3.
Texas Rule of Appellate Procedure 41.3 provides that:
In cases transferred by the Supreme Court from one court of appeals to
another, the court of appeals to which the case is transferred must decide
the case in accordance with the precedent of the transferor court under
principles of stare decisis . . . .
Id. Consequently, we are bound by Bernhard, an opinion from the Fourteenth Court of
Appeals dealing with residential construction defect allegations and the analogous legal
issue concerning the confirmation of attorney’s fees where the arbitration agreement
addresses the same. 423 S.W.3d at 534. Considering this binding precedent, we
conclude the Fulchers’ arbitrator did not exceed the scope of his authority when he
awarded attorney’s fees as part of the Fulchers’ damages. See id.
Like the Bernhard Court, though, we “pass no judgment on whether the arbitrator
made a correct decision under the law and facts of this case” but recognize that “the
arbitrator consulted the contractual provisions and statutes regarding attorney’s fees
when reaching his conclusion.” See 423 S.W.3d at 535. Similarly, we make no judgment
regarding whether the award of conditional appellate attorney’s fees was correct or even
reasonable under the law. See id. Following Bernhard, as we must, we only acknowledge
11
that it was within the arbitrator’s authority to make such an award because the basis for
the attorney’s fee award is “rationally inferable” from the parties’ arbitration agreement as
the agreement provides that “[t]he arbitrator shall be authorized to provide all recognized
remedies available in law or in equity for any cause of action that is the basis of the
arbitration.” See Myer, 232 S.W.3d at 413.
Taylor Morrison also argues that “[t]he [a]rbitrator’s disregard of the parties’ chosen
arbitration procedures was not just a legal error, but a decision to exceed his powers to
impair obligations of contract in violation of the “Contracts Clause” of the U.S. Constitution
and the Texas Constitution.” See U.S. CONST., art. I, § 10; TEX. CONST. art. 1, § 16. Given
that the arbitrator relied on language from a form contract Taylor Morrison drafted, though,
we find this argument unpersuasive. See generally Temple-Eastex Inc. v. Addison Bank,
672 S.W.2d 793, 798 (Tex. 1984) (“In Texas, a writing is generally construed most
strictly against its author and in such a manner as to reach a reasonable result consistent
with the apparent intent of the parties.”).
Taylor Morrison further contends that the arbitrator improperly relied on the Texas
Arbitration Act (TAA) instead of the FAA to award attorney’s fees, in violation of the
parties’ chosen arbitration procedures. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.001–
.098. However, the arbitrator made clear that the Purchase Agreement was governed by
the FAA and proceeded under the same, holding that “the FAA is silent regarding the
award of attorneys’ fees and expenses” and “[a]s such, neither the TAA, nor other Texas
statutory or common law[,] may be said to be . . . different or inconsistent in this regard.”
We conclude the trial court did not err when it confirmed the arbitrator’s award of
12
attorney’s fees. See Bernhard, 423 S.W.3d at 534; Amoco D.T. Co., 343 S.W.3d at 844.
Attorney’s fees are recoverable under the Fulchers’ pleaded breach of implied warranties
(habitability and good and workmanlike construction) cause of action, and thus were a
“recognized remedy” for a cause of action considered at arbitration. See TEX. PROP. CODE
ANN. § 27.004(g); TEX. CIV. PRAC. & REM. CODE ANN. § 38.001–.006. We overrule this sub-
issue.
2. Expert Fees and Arbitration Fees
Taylor Morrison also objects to the trial court’s adoption of the arbitrator’s award
of $32,968.86 in expert fees. In the arbitration award, the arbitrator explained:
Texas law provides for the recovery of attorneys’ fees in contract actions.
However, unlike attorneys’ fees, the arbitrator is aware of no other Texas
statutory or common law that provides for an award of expert fees in this
instance. Moreover, neither the FAA, the TAA, nor the applicable AAA rules
expressly discuss such fees. However, unlike the issue of attorneys’ fees,
in their Post-Arbitration Hearing Brief, Respondents [d]o not expressly
object to the award of expert fees. As such, expert fees will be awarded.
On this matter, we disagree with the arbitrator’s conclusion and the trial court’s
subsequent adoption of this award. Under the Purchase Agreement, the arbitrator was
only authorized to “provide all recognized remedies available in law or in equity for any
cause of action that is the basis of the arbitration.” In strict contrast to attorney’s fees,
which are recoverable under some of the Fulchers’ alleged causes of action and not
limited by § 27.004, the Fulchers do not cite to, and we have not found any, cause of
action or equitable principle that allows a party to recover expert witness fees. 4 See Myer,
4 Regarding Taylor Morrison’s alleged failure to object to this award, we do not know if Taylor
Morrison objected because the arbitrator’s full record is not before us. We note, however, that Taylor
Morrison objected to this award before the trial court entered judgment, and thus conclude that this issue
is preserved. See TEX. R. APP. P. 33.1.
13
232 S.W.3d at 413.
We hold the same with respect to the arbitrator’s award of “arbitration fees paid by
claimants,” the Fulchers, as it has no basis in law. See id. Accordingly, the arbitrator
exceeded the scope of his authority when he ordered that Taylor Morrison pay the
Fulchers’ arbitration fees. See Nafta Traders, Inc., 339 S.W.3d at 88 (holding that an
arbitrator does not have authority to apply a “remedy not expressly provided for under
existing state or federal law”).
We conclude that the trial court erred when it confirmed the arbitrator’s expert fees
and arbitration expenses award. See Bernhard, 423 S.W.3d at 534; Amoco D.T. Co., 343
S.W.3d at 844. We sustain this sub-issue.
C. Conclusion
We sustain the trial court’s award of attorney’s fees and reverse the award of
expert fees and arbitration expenses to the Fulchers.
III. POST-JUDGMENT INTEREST
By its second issue, Taylor Morrison argues the trial court erred when it awarded
“[p]ost-judgment interest on any conditional awards that vest subsequent to entry of this
judgment at the rate of five percent (5%) per annum.” We agree.
“An award of conditional appellate attorney’s fees to a party is essentially an award
of fees that have not yet been incurred and that the party is not entitled to recover unless
and until the appeal is resolved in that party’s favor.” Ventling v. Johnson, 466 S.W.3d
143, 156 (Tex. 2015). “Accordingly, we hold that an award for conditional appellate
attorney’s fees accrues postjudgment interest from the date the award is made final by
14
the appropriate appellate court's judgment.” Id. Here, the trial court erred when it ordered
that post-judgment interest on conditional attorney’s fees should accrue as of the date of
its judgment. Under Ventling, post-judgment interest on conditional appellate attorney’s
fees does not accrue until the date of the appellate court’s judgment. See id.We note, however, that guiding law only allows for total recovery of the conditional
appellate fees if the decision has been “resolved in that party’s favor.” Id. Here, the
Fulchers were only partially successful in their claims, as we sustained their award of
attorney’s fees but reversed their award of expert and arbitration fees. The Texas
Supreme Court has held that “[a]t the point when [conditional appellate attorney] fees are
awarded by the trial court, any appeal is still hypothetical.” Yowell v. Granite Op. Co., 620
S.W.3d 335, 355 (Tex. 2020). “There is no certainty regarding who will represent the
appellee in the appellate courts, what counsel’s hourly rate(s) will be, or what services
will be necessary to ensure appropriate representation in light of the issues the appellant
chooses to raise.” Id.; see Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578
S.W.3d 469, 501–03 (Tex. 2019). We thus observe that because
[t]he determination of an award of attorney’s fees is a severable
claim . . . we therefore reverse the award of attorney’s fees for appeal to
this court and remand to the trial court for a determination of the reasonable
amount of appellate attorney’s fees to be awarded to appellee in view of the
fact that appellant was partially successful in this appeal.
Goldman v. Alkek, 850 S.W.2d 568, 578–79 (Tex. App.—Corpus Christi–Edinburg 1993,
no writ); see Weizhong Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 188 (Tex.
App.—Houston [14th Dist.] 2015, pet. denied) (remanding appellate attorney’s fees to the
trial court for segregation of fees for successful claims, or to demonstrate why segregation
15
is not required); Pickett v. Keene, 47 S.W.3d 67, 78 (Tex. App.—Corpus Christi–Edinburg
2001, pet. dism’d) (“An appellee is not entitled to an award of appellate attorney’s fees
for that portion of fees attributable to an unsuccessful defense of the case”).
We sustain this issue.
VI. CONCLUSION
We affirm the award of attorney’s fees. We reverse the award for expert fees
($32,968.86) and arbitration fees ($24,327.19), and the post-judgment interest on any
conditional awards subsequent to entry of the trial court’s judgment. We remand to the
trial court the issue of conditional appellate attorney’s fees for a determination of the
reasonable amount to be awarded to appellee given that appellant was partially
successful in this appeal. The post-judgment interest on the conditional appellate
attorney’s fees should accrue as of the date of this court’s judgment.
LETICIA HINOJOSA
Justice
Delivered and filed on the
4th day of August, 2022.
16