Anne Janai and NEBO & FINCH, Inc. v. Sanford Rose Associates International, Inc. ( 2020 )

AFFIRMED and Opinion Filed February 13, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01079-CV
ANNE JANAI AND NEBO & FINCH, INC., Appellant
V.
SANFORD ROSE ASSOCIATES INTERNATIONAL, INC., Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-05695-2016
MEMORANDUM OPINION
Before Justices Osborne, Partida-Kipness, and Pedersen, III
Opinion by Justice Partida-Kipness
Anne Janai and Nebo & Finch, Inc. (Nebo) (collectively, Janai-Nebo) appeal the trial
court’s grant of summary judgment to Sanford Rose Associates International, Inc. (Sanford) on
Sanford’s claims against Janai-Nebo for breach of a franchise agreement and associated personal
guaranty, Janai’s counterclaims, and Sanford’s claim for actual damages and attorney’s fees. In
nine issues, Janai-Nebo contend that the trial court erred in granting Sanford’s motions for
summary judgment, sustaining Sanford’s objections to Janai-Nebo’s summary judgment evidence,
and awarding damages and attorney’s fees. We affirm the trial court’s judgment in all respects.
BACKGROUND
This case arises from a franchise agreement between Sanford, a Texas-based executive
search firm and franchisor, and Nebo, the franchisee. On August 22, 2016, Janai signed the
agreement (Franchise Agreement) to establish a Sanford franchise in New Hampshire. One day
later, the parties executed First and Second Amendments to the Franchise Agreement to modify
certain terms and assign Janai’s interests to Nebo, a New Hampshire corporation Janai established
to operate the franchise. Janai is Nebo’s sole member. Janai also executed a personal guaranty of
Nebo’s performance under the Franchise Agreement.
As modified by the First Amendment, the Franchise Agreement required Nebo to pay
Sanford a franchise fee of $88,000, with 10% due at signing. The remainder was due on the later
of: (1) the first day of Phase I New Franchisee training or (2) the date the franchisee’s self-funding
process was complete. “Self-funding” is a process in which the franchisee employs a third-party
service provider to transfer personal retirement funds into a new investment vehicle from which
the franchise fee is paid. Should the self-funding process fail, the franchisee must pay $31,200
within five days of notification of the failure, with the remaining $48,000, plus a $7,500 “payment
plan fee,” due twenty-four months after the Franchise Agreement effective date. Janai elected the
self-funding option.
The Franchise Agreement also required Nebo to pay a periodic royalty to Sanford.
Relevant to Sanford’s claims, the Franchise Agreement required a minimum royalty of $2,500 per
quarter starting ninety days after the franchisee began operations.
Janai paid Sanford $8,800 (10% of the franchise fee) upon signing the Franchise
Agreement and attended Sanford’s Phase I training in Dallas on or about September 26, 2016.
Janai did not pay the remainder of the franchise fee at training, claiming the self-funding process
was not complete.
On November 7, 2016, Janai sent an email to Nicholas Turner, Sanford’s Co-CEO, in
which she stated that she wished to terminate her franchise agreement. Turner responded that he
regretted Janai did not wish to move forward with the franchise, but that Janai still owed the
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remainder of the franchise fee and minimum royalties. Turner asked Janai to “make an offer to
exit and buyout of the legal agreement . . . .” Janai replied and confirmed her desire to terminate
the relationship. Janai stated, “It is not in my best interest to move forward with [Sanford] at
present” and indicated that she would draft a termination letter. Janai confirmed in a later email
to Turner that the “termination letter will not include a proposal that I pay a fee.”
On November 9, 2016, Janai also informed her self-funding service provider that she had
“put this on hold for a while” and asked the service provider to discontinue sending documents for
her signature. Janai did not notify Sanford that she had discontinued the self-funding process.
Sanford sent a notice of default to Janai on November 11, 2016, giving Janai-Nebo ten
days to cure the default by paying the remainder of the franchise fee. Janai-Nebo did not pay the
remainder of the franchise fee, and Sanford sent a letter to Janai on November 28, 2016,
terminating the Franchise Agreement.
PROCEDURAL HISTORY
Sanford filed suit on December 28, 2016, seeking recovery of the unpaid franchise fee and
royalties. Sanford brought claims for breach of the Franchise Agreement against both Janai and
Nebo, breach of the personal guaranty against Janai, and quantum meruit and promissory estoppel
against both Janai and Nebo. Sanford later amended its petition to add a claim of anticipatory
breach of contract based on Janai’s November 7, 2016 emails.
Janai-Nebo answered Sanford’s original and amended petitions and filed counterclaims for
violations of the Texas Deceptive Trade Practices Act (DTPA), common law fraud, fraud in the
inducement, fraud in the factum, breach of the Franchise Agreement, negligent misrepresentation,
per se DTPA violation through non-compliance with the Texas Business Opportunities Act
(TBOA), and rescission.
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The parties filed a series of motions for partial summary judgment. At issue in this appeal
are five motions for partial summary judgment filed by Sanford:
 No-Evidence Summary Judgment on Janai’s Counterclaims,
 Traditional Summary Judgment on Janai’s Counterclaims,
 Summary Judgment as to Liability on Sanford’s Anticipatory Breach Claims,
 Summary Judgment on Sanford’s Breach of Contract Claim, and
 Summary Judgment on Damages.
The trial court granted these motions for summary judgment and issued a final judgment
on August 21, 2018, awarding $125,308.46 in actual damages, $216,797.81 in attorney’s fees,
$895 in paralegal fees, $4,951.65 in litigation expenses, and $46,600.00 in appellate attorney’s
fees should Janai-Nebo unsuccessfully appeal. Janai-Nebo timely filed their notice of appeal on
September 18, 2018.
STANDARD OF REVIEW
We review a trial court’s summary judgment ruling de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable
to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and
disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v.
Parker, 249 S.W.3d 392, 399 (Tex. 2008).
A party without the burden of proof who conclusively negates at least one essential element
of a cause of action is entitled to summary judgment on that claim. Frost Nat’l Bank v. Fernandez,
315 S.W.3d 494, 508 (Tex. 2010); see TEX. R. CIV. P. 166a(b), (c). Once the movant produces
sufficient evidence to establish the right to summary judgment, the burden shifts to the claimant
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to come forward with competent controverting evidence that raises a fact issue. Van v. Pena, 990
S.W.2d 751, 753 (Tex. 1999). A plaintiff is entitled to summary judgment on a cause of action if
it conclusively proves all essential elements of the claim. See TEX. R. CIV. P. 166a(a), (c); MMP,
Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986).
After an adequate time for discovery, a party without the burden of proof may, without
presenting evidence, move for summary judgment on the ground that there is no evidence to
support an essential element of the nonmovant’s claim or defense. TEX. R. CIV. P. 166a(i). The
motion must specifically state the elements for which there is no evidence. Id.; Timpte Indus., Inc.
v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the
nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See
TEX. R. CIV. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). If the
nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue
of material fact, then a no-evidence summary judgment is not proper. Smith v. O’Donnell, 288
S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003),
cert. denied, 541 U.S. 1030 (2004).
When a party moves for summary judgment under both rules 166a(c) and 166a(i), we will
first review the trial court’s judgment under the standards of rule 166a(i). Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the appellant failed to produce more than a scintilla
of evidence under that burden, then there is no need to analyze whether the appellee’s summary
judgment proof satisfied the less stringent rule 166a(c) burden. Id.
ANALYSIS
Janai-Nebo raise nine issues broadly asserting that the trial court erred in granting
Sanford’s motions for partial summary judgment.
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A. Waiver
Sanford contends that Janai-Nebo have waived their first, second, eighth, and ninth issues
due to inadequate briefing. Before we consider the merits of the appeal, we address Sanford’s
contentions.
In their first issue, Janai-Nebo contend that the trial court erred “when it ruled, as a matter
of law, that Appellants were not wrongfully terminated.” Likewise, Janai-Nebo contend in their
second issue that the trial court erred “when it ruled, as a matter of law, that Appellee did not
commit a per se violation of the TDTPA.” The argument following each of these issues does not
direct the court to the trial court’s order at issue, cite supporting legal authority, or explain how
the cited facts support the argument. Thus, these issues present nothing for our review. See TEX.
R. APP. P. 38.1(i) (An appellant’s brief “must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record”). However, the
arguments presented in these issues are cited in Janai-Nebo’s fourth and third issues, respectively.
We will consider these arguments to the extent they are incorporated into the fourth and third
issues.
Janai-Nebo’s eighth issue contains no argument at all but merely states, “The Final
Judgment was premised upon the granting of the previous motions already briefed, which are
incorporated herein by reference.” Likewise, Janai-Nebo’s ninth issue states only, “This point is
briefed in Issue No. 6 supra [sic].” Neither of these issues presents anything for our review. See
id. Additionally, “this court does not have a duty to review a voluminous record without guidance
from the appellant to determine whether its assertion of reversible error is valid.” Keyes Helium
Co. v. Regency Gas Services, L.P., 393 S.W.3d 858, 861 (Tex. App.—Dallas 2012, no pet.).
We overrule Janai-Nebo’s first, second, eighth, and ninth issues.
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B. No-Evidence Summary Judgment on Janai’s Counterclaims
In their fourth issue, Janai-Nebo contend the trial court erred in granting Sanford’s motion
for partial no-evidence summary judgment on Janai’s counterclaims. We disagree.
When Sanford moved for partial no-evidence summary judgment, Janai’s live
counterclaims asserted that Sanford had:
 Violated the DTPA as codified in sections 17.46(b)(5), (7), and (23) of the Texas
Business and Commerce Code;
 Violated the DTPA by failing to file a franchisor registration or exemption in violation
of the TBOA;
 Committed common-law fraud, fraud in the inducement, and fraud in the factum by
falsely representing the “nature of the franchise”;
 Breached the Franchise Agreement and Janai’s personal guaranty by “wrongful
termination and wrongful demand and suit on the Personal Guaranty”; and
 Committed negligent misrepresentation.
Janai alternatively sought rescission of the Franchise Agreement.1
Sanford moved for partial no-evidence summary judgment on all of Janai’s counterclaims.
In its motion, Sanford detailed every element of each counterclaim, identifying the elements on
which Janai lacked admissible evidence. See Timpte Indus., 286 S.W.3d at 310; TEX. R. CIV. P.
166a(i).
Janai-Nebo responded to Sanford’s motion and offered into evidence:
 A copy of the Franchise Agreement,
 A copy of the First Amendment to the Franchise Agreement,
 A copy of Sanford’s default and termination notices,
 Sanford’s Franchise Disclosure Document,
1
Although both Janai and Nebo originally asserted counterclaims, the live pleading when Sanford filed its motion
was Janai’s Third Amended Counterclaim, which did not include Nebo. Janai-Nebo have not asserted on appeal that
Nebo retains any unadjudicated counterclaims.
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 Janai’s affidavit, and
 Transcript excerpts from the depositions of Nick Turner, who Janai-Nebo allege drafted
the Franchise Agreement, and Harvey Shapman, who Janai-Nebo allege sent the default
and termination notices.
Sanford objected to certain statements in Janai’s affidavit on the grounds that statements
were conclusory, legal conclusions, irrelevant, or not based on personal knowledge. Sanford also
objected to a portion of the Turner deposition transcript as calling for a legal conclusion. The trial
court sustained Sanford’s objections and granted Sanford’s motion for partial no-evidence
summary judgment.
The trial court did not specify the grounds on which it granted Sanford’s motion. If a
summary judgment order issued by the trial court does not specify the ground or grounds relied
upon for a ruling, the ruling will be upheld if any of the grounds in the summary judgment motion
can be sustained. Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Hall v. Douglas,
380 S.W.3d 860, 867 (Tex. App.—Dallas 2012, no pet.).
Janai-Nebo’s fourth issue contains multiple sub-issues. We address each sub-issue
separately.
1) Adequate Time for Discovery
Janai-Nebo note in their brief that no discovery deadline had been set at the time Sanford
filed its motion for partial no-evidence summary judgment. Janai-Nebo took various depositions
and propounded interrogatories and discovery requests before Sanford filed its motion. According
to Janai-Nebo, the evidence produced through discovery demonstrates a fact issue regarding
Janai’s reliance on Sanford’s alleged misrepresentations. Nonetheless, Janai-Nebo contend that
“[s]ome evidence is in the possession of [Sanford] and has not been produced as of the no-evidence
motion” and list individuals whom they wish to depose on “false promises and representations and
intent,” in reference to elements of their DTPA and tort claims.
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Although not expressly stated in their brief, we take Janai-Nebo’s argument to be that the
trial court abused its discretion by hearing Sanford’s no-evidence motion before an adequate time
for discovery had passed. See TEX. R. CIV. P. 166a(i).
There is no bright-line requirement that the discovery period must have passed before a no-
evidence motion can be filed. Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 376 (Tex. App.—
Dallas 2005, no pet.). A party contending that it has not had an adequate opportunity for discovery
before a no-evidence summary judgment hearing must file either an affidavit explaining the need
for further discovery or a verified motion for continuance. Tenneco Inc. v. Enter. Products Co.,
925 S.W.2d 640, 647 (Tex. 1996); Killingsworth v. Hous. Auth. of City of Dallas, 447 S.W.3d 480,
495 (Tex. App.—Dallas 2014, pet. denied); see also TEX. R. CIV. P. 166a(g), 251, 252. We review
a trial court’s decision to grant a continuance for additional discovery for abuse of discretion.
Patten v. Johnson, 429 S.W.3d 767, 776 (Tex. App.—Dallas 2014, pet. denied).
After Janai-Nebo filed their response to Sanford’s motion for partial no-evidence summary
judgment, Sanford filed its reply and objections to Janai-Nebo’s summary judgment evidence.
Janai-Nebo filed a motion to strike the reply as not permitted under the rules and an “objection” to
Sanford’s objections.
Janai-Nebo also filed a verified Alternative Motion for Continuance. The Alternative
Motion did not explain the need for further discovery but conditionally sought a continuance of
the summary judgment hearing to give Janai-Nebo “appropriate opportunity to respond, amend, or
supplement” only if the trial court denied Janai-Nebo’s motion to strike and objection. See Brown
v. Brown, 145 S.W.3d 745, 749 (Tex. App.—Dallas 2004, pet. denied) (motion for continuance
that did not explain the need for further discovery is insufficient to show trial court abused its
discretion in hearing no-evidence motion for summary judgment before end of discovery period
or in determining the parties had adequate time for discovery). Janai-Nebo’s Alternative Motion
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also did not discuss the relevant factors or otherwise explain why the time between the filing of
Sanford’s original petition and summary judgment motion was not adequate. See Killingsworth,
447 S.W.3d at 495; Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d 899, 903 (Tex. App.—
Dallas 2006, no pet.) (relevant factors include time allowed for discovery, what discovery was
completed, what further discovery was needed, why the time allowed was not adequate).
Regardless, Janai-Nebo contend that the evidence produced through discovery is sufficient to
create a fact issue. We conclude that Janai-Nebo have failed to show the trial court abused its
discretion by hearing Sanford’s motion for partial no-evidence summary judgment when it did.
See Brown, 145 S.W.3d at 749.
2) Janai’s Counterclaims
a. Rescission
The entirety of Janai-Nebo’s argument on Janai’s rescission counterclaim is,
“Recission/Restoration [sic] Order is an appropriate remedy under the TDTPA and for negligent
misrepresentation.”
We are not required to search the appellate record, with no guidance from the briefing
party, to determine if the record supports the party’s argument. Pratt v. State, 907 S.W.2d 38, 47
(Tex. App.—Dallas 1995, writ denied) (citing Fredonia State Bank v. General Am. Life Ins. Co.,
881 S.W.2d 279, 283 (Tex. 1994)). We also “know of no authority obligating us to become
advocates for a particular litigant through performing their research and developing their argument
for them.” Tello v. Bank One, N.A., 218 S.W.3d 109, 116 (Tex. App.—Houston [14th Dist.] 2007,
no pet.) (internal quotation omitted). Thus, an appellant’s failure to cite legal authority or provide
substantive analysis of a legal issue results in waiver of the complaint. Fredonia State Bank, 881
S.W.2d at 284 (observing that error may be waived by inadequate briefing); Huey v. Huey, 200
S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.).
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Janai-Nebo have failed provide any analysis of the legal issues presented on Janai’s
counterclaim for rescission. Accordingly, Janai-Nebo have waived any complaint as to the trial
court’s ruling on this counterclaim. See Fredonia State Bank, 881 S.W.2d at 284.
b. DTPA and Fraud Claims
Janai-Nebo contend that “[t]here are fact issues on all elements of” Janai’s counterclaims
for DTPA violations, common-law fraud, fraud in the inducement, fraud in the factum, and
negligent misrepresentation. Although such a general challenge to a summary judgment is
sufficient to preserve error, the appellant must still present argument and legal authority “as to all
the possible grounds upon which summary judgment should have been denied.” Malooly Bros.,
Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Plexchem Int’l, Inc. v. Harris Cnty. Appraisal
Dist., 922 S.W.2d 930, 930–31 (Tex. 1996); Morrison v. Profanchik, No. 05-17-01281-CV, 2019
WL 3798182, at *3 (Tex. App.—Dallas Aug. 13, 2019) (mem. op.), supplemented by, No. 05-17-
01281-CV, 2019 WL 5112268 (Tex. App.—Dallas Oct. 10, 2019, no pet.) (mem. op.).
Janai-Nebo’s sole legal argument is that the trial court should not have found for Sanford
on the intent and reliance elements of these counterclaims because these elements present fact
questions and are not suitable for summary judgment. Janai-Nebo fail to address Sanford’s no-
evidence challenge to the other elements of these counterclaims. Because Janai-Nebo do not
challenge every ground on which the no-evidence summary judgment could have been granted on
their DTPA and fraud counterclaims, we must affirm the judgment as to those counterclaims. See
Malooly Bros., 461 S.W.2d at 121; Plexchem Int’l, 922 S.W.2d at 930–31; Anderton v. Cawley,
378 S.W.3d 38, 57 (Tex. App.—Dallas 2012, no pet.).
Janai-Nebo also contend that the trial court erred in excluding portions of Janai’s affidavit
offered in response to Sanford’s traditional and no-evidence motions for partial summary judgment
on Janai’s counterclaims.
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There is no difference between the standards for evidence admissible in a summary
judgment proceeding and those applicable to a regular trial. Seim v. Allstate Texas Lloyds, 551
S.W.3d 161, 163 (Tex. 2018) (per curiam). “Evidentiary rulings are committed to the trial court’s
sound discretion.” U-Haul Intern., Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). A trial
court abuses its discretion when it acts without regard for guiding rules or principles. Id.
Affidavits supporting or opposing summary judgment must be made on personal
knowledge, must set forth such facts that would be admissible in evidence, and must show
affirmatively that the affiant is competent to testify to the matters stated therein. TEX. R. CIV. P.
166a(f); Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (per curiam). A conclusory affidavit is
not sufficient to raise a fact issue to defeat summary judgment. See Earle v. Ratliff, 998 S.W.2d
882, 890 (Tex. 1999); Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). The
prohibition of conclusory evidence does not mean that logical conclusions based on stated
underlying facts are improper. See Thompson v. Curtis, 127 S.W.3d 446, 450 (Tex. App.—Dallas
2004, no pet.). However, an affidavit is conclusory if it fails to explain the basis of the affiant’s
statements to link conclusions to facts. See Earle, 998 S.W.2d at 890.
Sanford objected to the following statements in Janai’s affidavit on the grounds that the
statements were either conclusory, legal conclusions, irrelevant, or not based on personal
knowledge.
 I am a “consumer” as that word is defined in the Texas Deceptive Practices
Act because the Franchise Agreement also included tangible goods and
services.
 I am a Franchisee as that term is defined under the Franchise Rule, Texas
Business Opportunity Act and the Texas Deceptive Trade Practices Act.
 All of the above [alleged promises] were false, misleading and deceptive. I
relied upon these to my detriment when I signed the Franchise agreement,
Guaranty, and paid the initial payment of ten percent of the franchise fee.
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 Plaintif’s [sic] actions as described above, [sic] are unconscionable because
I am a single mother of limited means.
 [T]they [Sanford] wrongfully terminated me by ignoring paragraph 3
[payment terms] of the first amendment to the Franchise Agreement.
 The above actions of Plaintiff were a producing cause of me suffering the
injuries described herein.
 Collectively and individually, the promises and representations described
above were material to me when I signed the Franchise Agreement,
Guaranty, and paid the ten percent of the franchise fee.
 After I took the actions described above in reliance of the promises and
representations, I learned they were false. These promises, representations
and acts were made at a time when the persons who told them to me knew
they were false, had no intention of delivering on the promises or were made
recklessly without knowledge of whether they were false. This is
evidenced, in part, in the fact that they did not deliver as promised and
terminated me wrongfully. I acted on these actions by Plaintiff which is the
proximate cause of the injuries that I have described above.
“An affidavit showing no basis for personal knowledge is legally insufficient.” Kerlin, 274
S.W.3d at 668. An improper legal conclusion is one that does not provide underlying facts to
support the conclusion. See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (attorney’s
affidavit that stated only legal conclusions that “I acted properly,” “have not violated the [DTPA],”
and “did not breach my contract” did not provide underlying basis or reasoning to support
conclusions and would not support summary judgment); Brownlee v. Brownlee, 665 S.W.2d 111,
112 (Tex. 1984) (holding affidavits stating legal conclusions, not facts, incompetent summary
judgment proof).
Janai-Nebo argue on appeal only that the doctrine of optional completeness demands that
the entire affidavit be considered because Sanford cited only the “Topic Sentence[s]” of Janai’s
affidavit as conclusory in its objections. Janai-Nebo cite no legal authority and present no
argument to support these claims, thus waiving argument as to the statements excluded from
evidence. See TEX. R. APP. P. 38.1. Regardless, the rule of optional completeness does not apply
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to a party’s defense of its own affidavit. See TEX. R. EVID. 107 (permitting a party to inquire into
other parts of a writing when only part of the writing is introduced by an opponent).
Waiver aside, the statements that Sanford objected to as conclusory and legal conclusions
merely recite the elements of Janai’s counterclaim. These statements are not competent summary
judgment evidence. See Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 698
(Tex. App.—Dallas 2008, no pet.); Garza v. Mut. of Omaha Ins. Co., No. 05-98-01093-CV, 2001
WL 873613, at *3 (Tex. App.—Dallas Aug. 3, 2001, no pet.) (op. on mot. for reh’g) (not
designated for publication) (holding trial court did not abuse its discretion in striking affidavits
that “make generalized assertions concerning all appellants and that provide legal conclusions
concerning the elements of their causes of action”).
Additionally, Janai’s affidavit offered only that Sanford “did not deliver as promised” to
demonstrate Janai’s personal knowledge that Sanford had “no intention of delivering on the
promises [made].” Misrepresentation and intent, however, are two separate elements of Janai’s
fraud claims. See Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015); In re
FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001). Thus, the failure to deliver on a promise
is insufficient alone to show intent, see Formosa Plastics Corp. USA v. Presidio Engineers &
Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998) (“[T]he mere failure to perform a contract is not
evidence of fraud”), and Janai’s affidavit offers no facts to support her alleged personal knowledge
of Sanford’s intent. See Kerlin, 274 S.W.3d at 668.
Finally, Janai’s statement regarding her familial circumstances was properly stricken as
irrelevant to her allegation that Sanford acted unconscionably. See Bradford v. Vento, 48 S.W.3d
749, 760 (Tex. 2001) (holding unconscionability requires proof the defendant took advantage of
complainant’s lack of knowledge); TEX. BUS. & COM. CODE ANN. § 17.45(5) (defining an
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unconscionable action as “an act or practice which, to a consumer’s detriment, takes advantage of
the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree”).
Janai-Nebo also contend that “[t]he court erred in denying Appellant’s motion to
supplement,” citing TEX. R. CIV. P. 166a(f) for the proposition that a “court may permit affidavits
to be supplemented or opposed by depositions or by further affidavits.” Janai-Nebo do not direct
the Court to the motion and order in question or offer any argument as to why supplementation
should have been allowed, thus waiving this argument. See Pratt, 907 S.W.2d at 47; TEX. R. APP.
P. 38.1. On the record before us, the trial court did not abuse its discretion in sustaining Sanford’s
objections and striking those portions of Janai’s affidavit.
c. Breach of Contract
As to Janai’s breach of contract counterclaim, Janai-Nebo direct the Court to their first
issue. In their first issue, Janai-Nebo cite and quote evidence, including the First Amendment to
the Franchise Agreement, Sanford’s default and termination notices, and transcript excerpts from
the deposition of two Sanford employees to purportedly show that Sanford’s franchise fee demand
was premature. According to Janai-Nebo, the franchise fee was not due at the Phase I training, as
asserted in Sanford’s demand letter, because Janai’s self-funding process was not yet complete.
In response to Sanford’s motion for partial no-evidence summary judgment, Janai-Nebo
had the burden to bring forward more than a scintilla of probative evidence that raises a fact issue.
See Smith, 288 S.W.3d at 424. Given Janai-Nebo alleged that Sanford breached the Franchise
Agreement by demanding the franchise fee before it was due, Janai-Nebo had the burden of
offering evidence the franchise fee was not yet due when Janai attended Phase I training.
Aside from copies of Sanford’s notices, Janai-Nebo offered only evidence of the language
contained in the Franchise Agreement and the First Amendment to the Franchise Agreement. This
evidence reflects only Sanford’s alleged grounds for termination and the parameters for
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determining when the franchise fee became due. It is no evidence whether the franchise fee had
become due before Sanford issued its demand and termination notices.
Under the terms of the First Amendment to the Franchise Agreement, the timeframe for
paying the franchise fee was extended past the Phase I training date to the date the self-funding
process completed or failed. This provision is the sole basis of Janai-Nebo’s claim that Sanford
breached the Franchise Agreement by “wrongfully terminating” it before the franchise fee was
due. Yet, Janai-Nebo offered no evidence showing that Janai’s self-funding process was still in
process when she attended the Phase I training or when Sanford issued its demand and termination
notices. Indeed, Janai-Nebo offered no evidence of the self-funding process at all.
On the record before us, we overrule Janai-Nebo’s fourth issue.
Sanford moved for both no-evidence and traditional summary judgment on Janai’s
counterclaims. Janai-Nebo’s third issue seeks review of the trial court’s order granting Sanford’s
traditional motion for summary judgment on Janai’s counterclaims. Having overruled Janai-
Nebo’s fourth issue, however, we need not address Janai-Nebo’s third issue. See Ford Motor Co.,
135 S.W.3d at 600 (if the appellant failed to produce more than a scintilla of evidence under the
no-evidence burden, there is no need to analyze whether the appellee’s summary judgment proof
satisfied the less stringent traditional summary judgment burden).
C. Summary Judgment on Sanford’s Breach of Contract Claims
In their fifth and sixth issues, Janai-Nebo contend that the trial court erred in granting
Sanford’s motions for partial summary judgment on anticipatory breach of contract and breach of
contract.
1) Sanford’s Anticipatory Breach of Contract Claim
Sanford moved for partial summary judgment on its assertion that Nebo had anticipatorily
breached the Franchise Agreement and Janai had anticipatorily breached the personal guaranty.
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Sanford offered into evidence, among other things, transcript excerpts from Janai’s deposition and
copies of Janai’s emails with Sanford Co-CEO Nicholas Turner and Janai’s self-funding provider
Guidant Financial. There is no record of any objection by Janai or Nebo to Sanford’s summary
judgment evidence. Instead, Janai-Nebo argue that Janai’s emails do not exhibit an unconditional
declaration of intent not to perform the Franchise Agreement as required to prove anticipatory
breach.
To prove anticipatory breach, a plaintiff must show that (1) the defendant repudiated the
obligation (2) without just excuse and (3) plaintiff was damaged from the breach. Taylor Pub. Co.
v. Sys. Mktg., Inc., 686 S.W.2d 213, 217 (Tex. App.—Dallas 1984, writ ref’d n.r.e.) (op. on mot.
for reh’g); McDonald v. McDonald, No. 05-15-00338-CV, 2016 WL 2764881, at *5 (Tex. App.—
Dallas May 11, 2016, no pet.) (mem. op.). Janai-Nebo contest only the first element.
“Repudiation consists in such words or actions by a contracting party as indicate that he
is not going to perform his contract in the future.” Group Life & Health Ins. Co. v. Turner, 620
S.W.2d 670, 673 (Tex. Civ. App.—Dallas 1981, no writ) (internal quotation omitted); White v.
Harrison, 390 S.W.3d 666, 672 (Tex. App.—Dallas 2012, no pet.). “A repudiation or anticipatory
breach occurs when a party’s conduct shows a fixed intention to abandon, renounce, and refuse to
perform the contract.” Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795, 802 (Tex. App.—Dallas
2011, no pet.) (internal quotation omitted). There must be an unconditional declaration of an
intention not to perform the contract. Id.; Davis v. Canyon Creek Estates Homeowners Ass’n, 350
S.W.3d 301, 313 (Tex. App.—San Antonio 2011, pet. denied) (citing Pollack v. Pollack, 39
S.W.2d 853, 857 (Tex. Comm’n App. 1931, holding approved), reh’g denied, 46 S.W.2d 292
(1932)).
The record reflects that the Franchise Agreement, as amended by the First Amendment,
required Nebo to complete payment of the franchise fee by the later of the date on which Janai
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attended Phase I training or the date on which Janai’s self-funding process was complete. Janai
attended Phase I training on September 26, 2016. The record reflects, and Janai-Nebo do not
dispute, that Nebo did not pay the remainder of the franchise fee at this time. According to Janai-
Nebo, this was because Janai’s self-funding process was not complete. Yet, neither Janai nor Nebo
produced any evidence to support this allegation.
On November 7, 2016, Janai emailed Turner, stating that she wished to terminate the
Franchise Agreement, claiming personal concerns with the way in which Sanford operated. Janai-
Nebo claim that the emails do not contain an unequivocal refusal to perform. See Hunter, 339
S.W.3d at 802; El Paso Prod. Co. v. Valence Operating Co., 112 S.W.3d 616, 621 (Tex. App.—
Houston [1st Dist.] 2003, pet. denied) (“To constitute a repudiation, a party to a contract must have
absolutely and unconditionally refused to perform the contract without just excuse.”). According
to Janai-Nebo, the statements contained in Janai’s emails were “taken out of context,” “stated in
the conditional future tense,” and “an attempt to reach a settlement.” We disagree.
Sanford offered into evidence the November 7, 2016 email exchange between Janai and
Turner. In this exchange, Janai explained that her engagement with Sanford had “sent up all the
red flags for [her],” and that she “can’t commit the next several years of [her] life to an environment
that will require [her] to live in that framework.” Turner responded that he regretted Janai’s
decision to terminate her relationship with Sanford, reminded Janai that “[p]er the agreement the
funds are still due,” and asked for “an offer to exit and buyout of the legal agreement.” Janai
replied, “It is not in my best interest to move forward with [Sanford] at present,” and promised to
provide a termination letter. Janai sent a second reply asking whether Sanford’s legal counsel
would prepare the “termination letter/settlement proposal.” Turner responded that Janai should
prepare the “settlement letter and proposed fee.” Janai replied, “[M]y termination letter will not
include a proposal that I pay a fee. You will of course have the right to reject my termination letter
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and pursue the options available to you.” Janai claimed, “I can not [sic] work in a litigious
environment.”
Sanford also offered a November 9, 2016 email exchange between Janai and her self-
funding provider Guidant Financial. The email exchange starts with an email from Guidant to
Janai indicating it has a document for her to sign. Janai responded, “I’ve put this on hold for a
while. So, no need to keep sending me docusigns. I’ve spoken to my Guidant representative about
it.” The email contains no indication of when Janai put the self-funding process “on hold.”
Finally, Sanford offered into evidence deposition transcript excerpts in which Janai
testified that her November 7, 2016 emails accurately stated her intention not to own or operate a
Sanford franchise, that she did not continue the self-funding process after November 7, 2016, and
that she did not pay the remainder of the franchise fee or minimum royalties.
Sanford’s summary judgment evidence shows that Janai had a “fixed intention to abandon,
renounce, and refuse to perform” the Franchise Agreement. See Hunter, 339 S.W.3d at 802; see
also Laredo Hides Co. v. H&H Meat Prods. Co., 513 S.W.2d 210, 216, 220–21 (Tex. Civ. App.—
Corpus Christi–Edinburg 1974, writ ref’d n.r.e.) (finding anticipatory repudiation where defendant
meat packer “unequivocally told [plaintiff’s representative] that he was not going to sell him any
more hides, and further advised that it was useless for him to send a truck for the hides”). cf., SAVA
gumarska in kemijska industria d.d. v. Advanced Polymer Scis., Inc., 128 S.W.3d 304, 315 (Tex.
App.—Dallas 2004, no pet.) (holding defendant manufacturer’s letter refusing further performance
until plaintiff buyer provided further assurance it would abide by agreement to purchase the
manufacturer’s product was not repudiation); Harlan v. Tate, No. 05-95-01346-CV, 1996 WL
743772, at *3–5 (Tex. App.—Dallas Dec. 30, 1996, no writ) (not designated for publication)
(holding debtor’s letter to creditor indicating debtor would not make an upcoming interest payment
“short of a drastic turnaround immediately” was not a repudiation in light of debtor’s testimony
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that he suffered recent financial difficulties and never intended to abandon his contractual
obligations).
Janai-Nebo also contend that Sanford’s default and termination notices were insufficient
because they failed to cite anticipatory breach as grounds for termination. Janai-Nebo, however,
fail to cite any authority for the proposition that this alleged deficiency rendered the notices
defective, thus waiving this argument. See TEX. R. APP. P. 38.1(i); Tello, 218 S.W.3d at 116.
Janai-Nebo also argue that Sanford did not give Nebo ten days to cure any alleged breach,
as required by the Franchise Agreement. However, the November 11, 2016 default notice
expressly states that Sanford “is . . . providing ten (10) days written notice of your default and an
opportunity to cure by making this payment within the aforementioned ten (10) days.” Sanford
sent the termination notice on November 28, 2016, seventeen days later.
Sanford’s summary judgment evidence conclusively established all elements of its
anticipatory breach of contract claims, and Janai-Nebo failed to present evidence raising a fact
issue. See Van, 990 S.W.2d at 753; MMP, 710 S.W.2d at 60. Accordingly, we overrule Janai-
Nebo’s fifth issue.
2) Sanford’s Breach of Contract Claim
In their sixth issue, Janai-Nebo contend that the trial court erred in granting Sanford’s
motion for partial summary judgment on its breach of contract claim against Nebo.
After the trial court granted Sanford’s motion for partial summary judgment on its
anticipatory breach of contract claim, Sanford moved for partial summary judgment on its breach
of contract claim on the ground that Nebo had failed to pay the remainder of the franchise fee due
under the Franchise Agreement. Sanford relied on the same evidence offered in support of its
motion for partial summary judgment on its anticipatory breach of contract claims to show that the
franchise fee became due under the terms of the Franchise Agreement as soon as Janai stopped the
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self-funding process. Sanford also offered Janai’s deposition testimony that she did not notify
Sanford that she had stopped the self-funding process as required by the First Amendment to the
Franchise Agreement.
Janai-Nebo responded, reasserting their contention that that the franchise fee was not yet
due at Phase I training, as Sanford alleged, because the self-funding process was not complete.
According to Janai-Nebo, the payment was “delayed . . . to an indefinite time in the future.” We
disagree.
When construing a written contract, our primary concern is to ascertain and give effect to
the true intentions of the parties as expressed in the agreement. El Paso Field Sers., L.P. v. MasTec
N. Am., Inc., 389 S.W.3d 802, 805 (Tex. 2012). We consider the entire writing and attempt to
harmonize and give effect to all the provisions of the contract by analyzing the provisions with
reference to the whole agreement. Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 311–
12 (Tex. 2005) (per curiam); Innovate Tech. Sols., L.P. v. Youngsoft, Inc., 418 S.W.3d 148, 151
(Tex. App.—Dallas 2013, no pet.). If a contract is susceptible to two constructions, one of which
would render it valid and the other invalid, the construction validating it must prevail. Hackberry
Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 56 (Tex.
App.—Dallas 2006, pet. denied).
Janai-Nebo’s interpretation of the First Amendment to the Franchise Agreement would
render the payment terms “illusory, void, and unenforceable,” Innovate Tech. Sols., 418 S.W.3d
at 152, and is not supported by the plain language of the contract. The First Amendment expressly
states that payment of the franchise fee is “consideration of [Sanford’s] granting franchise rights
to [Nebo].” Janai paid the 10% down payment, and payment of the remainder of the franchise fee
was due under the First Amendment to the Franchise Agreement:
no later than the first day of the Phase I New Franchisee training program if “self-
funding” process complete otherwise, available exception: Franchisee is using the
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service for “self-funding,” as a result, final balance due will be delayed. Once
process is complete per service provider, Franchisee will pay in full.
If the self-funding process “should fail to occur,” the First Amendment established a payment
schedule under which the initial payment was due “five (5) business days following the notification
that the ‘self-funding’ process failed.” The remainder of the franchise fee was due “within 24
months of the Franchise Agreement Effective Date.”
On its face, the First Amendment unambiguously contemplates only two scenarios for the
self-funding process: completion or failure. There is no scenario in which payment of the franchise
fee would be delayed indefinitely, and such an interpretation would render Nebo’s promised
consideration illusory. See In re 24R, Inc., 324 S.W.3d 564, 567 (Tex. 2010) (“When illusory
promises are all that support a purported bilateral contract, there is no mutuality of obligation, and
therefore, no contract.”). Under the terms of the First Amendment, Nebo could only delay payment
of the franchise fee until Janai’s self-funding process completed or failed, assuming the process
was still pending when Janai attended Phase I training.
Janai-Nebo offered no evidence to raise a fact issue as to whether the self-funding process
was still pending either on September 26, 2016, when Janai attended Phase I training, or on
November 11, 2016, when Sanford issued its default notice. Janai-Nebo do not contest that Janai
ordered Guidant to put the self-funding process “on hold.” Janai admitted in her deposition that
she terminated the self-funding process, did not pay the remainder of the franchise fee, and had no
intention of paying. Although Janai-Nebo offered no evidence to establish the date on which Janai
stopped the self-funding process, the evidence does establish that she had stopped the process by
November 9, 2016, at the latest.
Sanford’s summary judgment evidence conclusively established all elements of its claim
for breach of contract, and Janai-Nebo failed to present evidence raising a fact issue. See Van, 990
S.W.2d at 753; MMP, 710 S.W.2d at 60. Accordingly, we overrule Janai-Nebo’s sixth issue.
–22–
D. Sanford’s Motion for Partial Summary Judgment on Damages
After the trial court granted Sanford’s motion for partial summary judgment on its claims
for breach of contract, Sanford moved for summary judgment on damages, seeking the present
value of future contractual benefits and attorney’s fees.
In support of its claim for contract damages, Sanford offered the affidavit of Sanford Co-
CEO Jeff Kaye, in which Kaye calculated the present value of both the unpaid portion of Nebo’s
franchise fee and future minimum quarterly royalty payments using the current prime rate
published in the Wall Street Journal. Under the terms of the Franchise Agreement, also offered
into evidence, Nebo owed nineteen minimum quarterly royalty payments. Kaye prorated the first
and last payments and simplified the present value calculation of all nineteen royalty payments by
treating them all as due at the end of the five-year term specified in the Franchise Agreement. This
simplification accrued to Nebo’s benefit by understating the actual present value of all payments
due before the end of the term.
Sanford moved for attorney’s fees under both the Franchise Agreement and Janai’s
personal guaranty, using the “traditional” method for calculating attorney’s fees. In support of its
motion, Sanford offered attorney affidavits and billing records.
Janai-Nebo objected to Sanford’s motion on the grounds that Kaye was not an expert on
damages, the future royalty payments were not yet due because the Franchise Agreement does not
contain an acceleration clause, and the amount of attorney’s fees sought was unreasonable. In
support of their objection to Sanford’s attorney’s fees calculation, Janai-Nebo offered their
counsel’s affidavit, in which counsel opined that there had been “over lawyering,” Sanford had
failed to segregate time spent on Sanford’s claims versus Janai’s counterclaims, the amount sought
in damages did not justify the amount sought in attorney’s fees, and there was no basis for the
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calculation of contingent appeal fees. The trial court granted Sanford’s motion, awarding contract
damages, attorney’s fees, and costs.
1) Contract Damages
In their seventh issue, Janai-Nebo contend that the trial erred in awarding damages in the
form of future royalty payments because the Franchise Agreement does not contain an acceleration
clause. Janai-Nebo cite no authority for this proposition.
“When a party who is obligated to make future payments of money to another absolutely
repudiates the obligation without just excuse, the obligee is entitled to maintain his action for
damages at once for the entire breach, and is entitled in one suit to receive in damages the present
value of the future payments payable to him by virtue of the contract.” Taylor Pub. Co., 686
S.W.2d at 217 (citing Universal Life & Accident Ins. Co. v. Sanders, 102 S.W.2d 405 (Tex.
[Comm’n Op.] 1937)); Jenkins v. Jenkins, 991 S.W.2d 440, 448 (Tex. App.—Fort Worth 1999,
pet. denied) (holding the trial court should have awarded present value of all future alimony
payments in light of obligor’s repudiation of alimony agreement) cf. Watson v. Purvis, No. 14-18-
00132-CV, 2019 WL 2939816, at *6–7 (Tex. App.—Houston [14th Dist.] July 9, 2019, no pet.)
(mem. op.) (reversing an award of future contract installment payments because plaintiff did not
allege or prove anticipatory breach of all future payments).
Nebo was obligated under the Franchise Agreement to pay a minimum royalty payment of
$2,500 per quarter beginning ninety days after Nebo began operations. As previously discussed,
the trial court properly granted summary judgment on Sanford’s claim that Nebo repudiated its
obligations under the Franchise Agreement. Thus, the trial court properly awarded Sanford the
present value of all future minimum royalty payments. See Taylor Pub. Co., 686 S.W.2d at 217.
–24–
2) Attorney’s Fees
Janai-Nebo also contend in their seventh issue that the trial court erred by awarding Sanford
attorney’s fees. We review a court’s decision to award attorney’s fees for an abuse of discretion.
El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012).
In its brief, Sanford claims that Texas recognizes two methods for calculating reasonable
attorney’s fees: the lodestar method and the “traditional” method. Sanford applied the “traditional”
method in its motion for partial summary judgment on damages. A recent Texas Supreme Court
opinion, however, has dispelled the notion that there are two methods.
In Rohrmoos Venture v. UTSW DVA Healthcare, LLP, the court addressed whether
evidence presented was sufficient to award attorney’s fees under Texas’ fee-shifting precedent.
578 S.W.3d 469, 475 (Tex. 2019). Before addressing the merits of the appeal, the court examined
the law governing attorney’s fees in fee-shifting situations. Id. at 487.
The court noted that it first outlined a factor-based method to assess reasonable and
necessary attorney’s fees in Arthur Andersen & Co. v. Perry Equip. Corp. Id. at 493–94 (citing
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997)). Those factors
are:
(1) the time and labor required, the novelty and difficulty of the questions involved,
and the skill required to perform the legal service properly;
(2) the likelihood . . . that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the
services; and
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(8) whether the fee is fixed or contingent on results obtained or uncertainty of
collection before the legal services have been rendered.
Id. The court introduced the lodestar method in El Apple I, Ltd. v. Olivas to provide “additional
guidelines.” Id. (citing El Apple I, 370 S.W.3d at 760).
Because some courts have treated Arthur Andersen and El Apple I as establishing two
different methods for calculating attorney’s fees, the court in Rohrmoos Venture clarified there has
only ever been one method: the “traditional,” or Arthur Andersen, method. Id. at 496. The lodestar
method was “developed as a ‘short hand version’ of the Arthur Andersen factors and was never
intended to be a separate test or method.” Id.
As stated in El Apple I, the lodestar method requires first determining “‘the reasonable
hours spent by counsel in the case and a reasonable hourly rate for such work.’” Id. at 494 (quoting
El Apple I, 370 S.W.3d at 760). The number of such hours is then multiplied by the applicable
rate to produce the lodestar. Id. The fact finder may adjust this base lodestar using relevant factors.
Id. The starting point for determining a lodestar fee award, however, “is the number of hours
‘reasonably expended on the litigation,’ and proof of reasonable hours ‘should include the basic
facts underlying the lodestar, which are: (1) the nature of the work, (2) who performed the services
and their rate, (3) approximately when the services were performed, and (4) the number of hours
worked.’” Id. at 494–95 (quoting El Apple I, 370 S.W.3d at 762–63).
The base lodestar calculation usually includes at least the following Arthur Andersen
factors: “‘the time and labor required,’ ‘the novelty and difficulty of the questions involved,’ ‘the
skill required to perform the legal service properly,’ ‘the fee customarily charged in the locality
for similar legal services,’ ‘the amount involved,’ ‘the experience, reputation, and ability of the
lawyer or lawyers performing the services,’ ‘whether the fee is fixed or contingent on results
obtained,’ ‘the uncertainty of collection before the legal services have been rendered,’ and ‘results
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obtained.’” Id. at 500 (quoting Arthur Andersen, 945 S.W.2d at 818). Arthur Andersen lists
relevant considerations that may justify an adjustment to the base lodestar, but “considerations
already incorporated into the base calculation may not be applied to rebut the presumption that the
base calculation reflects reasonable and necessary attorney’s fees.” Id. at 501–02.
Sufficient evidence of these factors includes, at least, evidence of “(1) particular services
performed, (2) who performed those services, (3) approximately when the services were
performed, (4) the reasonable amount of time required to perform the services, and (5) the
reasonable hourly rate for each person performing such services.” Id. at 502. Although not
required, contemporaneous “billing records are strongly encouraged to prove the reasonableness
and necessity of requested fees when those elements are contested.” Id. Conclusory testimony
will not support a fee award. Id. at 501.
Janai-Nebo did not object to Sanford’s evidence but merely contested the conclusions
drawn therein. In their brief, Janai-Nebo contend that the trial court erred when it “neglected” the
Arthur Andersen criteria and failed to apply the lodestar method to determine Sanford’s attorney’s
fees award. Janai-Nebo cite no authority for their argument, arguing only that this was a “routine
lawsuit,” that the 700+ hours claimed by Sanford’s counsel is “clearly excessive,” and a “large
portion” of the time spent by Sanford’s counsel dealt with Janai’s counterclaims. Janai-Nebo also
imply that the attorney’s fees award is excessive because it exceeds the amount of damages. We
disagree.
Sanford offered into evidence contemporaneous billing records and attorney affidavits that
enumerate, analyze, and apply each Arthur Andersen factor. See id. at 502. Sanford’s attorney
affidavits also explained that billing segregation was not necessary because Janai’s counterclaims
arose from Sanford’s claims to recover amounts owed under the Franchise Agreement.
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Additionally, there is no rule that attorney’s fees cannot be more than actual damages. Sharifi v.
Steen Auto., LLC, 370 S.W.3d 126, 153 (Tex. App.—Dallas 2012, no pet.).
Sanford’s evidence was more than sufficient to support the trial court’s attorney’s fees
award, and the trial court did not abuse its discretion in so ordering. See Rhormoos Venture, 578
S.W.3d at 501–02. Accordingly, we overrule Janai-Nebo’s seventh issue.
CONCLUSION
Having overruled all of Janai-Nebo’s issues, we affirm the trial court’s judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
181079F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ANNE JANAI AND NEBO & FINCH, On Appeal from the 219th Judicial District
INC., Appellant Court, Collin County, Texas
Trial Court Cause No. 219-05695-2016.
No. 05-18-01079-CV V. Opinion delivered by Justice Partida-
Kipness. Justices Osborne and Pedersen, III
SANFORD ROSE ASSOCIATES participating.
INTERNATIONAL, INC., Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 13th day of February, 2020.
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