Joseph E. Eason III and Catherine Weil v. Deering Construction, Inc. D/B/A DK Construction ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00310-CV
___________________________
JOSEPH E. EASON III AND CATHERINE WEIL, Appellants
V.
DEERING CONSTRUCTION, INC. D/B/A DK CONSTRUCTION, Appellee
On Appeal from County Court at Law No. 3
Tarrant County, Texas
Trial Court No. 2017-002610-3
Before Gabriel, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellants Joseph “Trey” Eason III and Catherine Weil 1 appeal the trial court’s
judgment awarding appellee Deering Construction $9,449.74 in damages and $30,000
in attorney’s fees. Because the evidence is factually insufficient to support the amount
of damages awarded, we suggest a remittitur of $2,734.74. And because we hold the
evidence is factually insufficient to uphold the attorney’s fees award, we reverse that
portion of the judgment and remand the fee issue to the trial court for reconsideration
in light of Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex.
2019).
I. BACKGROUND FACTS
A. THE PARTIES’ AGREEMENT
In February 2016, Trey contacted Brad Deering,2 a general contractor
specializing in residential renovations, to inquire about a possible kitchen renovation
in the Easons’s 1930s Tudor-style home. Deering met with Trey at the house, where
Trey showed him a basic drawing of what the Easons wanted, including vaulted
ceilings and new appliances, fixtures, countertops, and flooring. After two more walk-
1
For simplicity and in accordance with their own brief, we will refer to the
appellants collectively as the Easons.
2
Deering’s company is Deering Construction, Inc. d/b/a DK Construction, the
named appellee. We will refer to Brad Deering and his company collectively as
Deering.
2
throughs, Deering put together a proposal estimating an overall cost of $112,610.04,
including 18% for his overhead and profit.
The Easons hired Deering to perform the work, but when the project costs
exceeded the original proposal, it became clear that they and Deering disagreed about
the character of their agreement. While the Easons viewed it as a fixed-price
agreement, with Deering agreeing to cover any overages beyond the initial quote of
$112,610.04, Deering adamantly denied ever making such a promise and characterized
their agreement as a cost-plus arrangement. In fact, Deering testified that in over 20
years of business he had never entered into a fixed-price contract for a project and
described how doing so would be nearly impossible as there were too many
unknowns—the Easons had not selected finishings and fixtures and Deering could
not predict what additional work may be needed due to the age of the house. Deering
denied ever telling the Easons that $112,610.04 would be the maximum cost.
B. PROBLEMS AND OVERAGES
Deering began work in October 2016. Soon after Deering began working on
the home, he discovered some of the problems that are typical in older homes,
including termite damage, structural issues, and plumbing problems, which required
additional costs to repair. And, according to Deering, the Easons chose fixtures that
resulted in additional expenses beyond the planned allowances.
3
1. Flooring and Ceilings
Over the years, past owners had laid multiple layers of flooring over the
original hardwood floors. Those layers had to be removed and, once gone, it was
clear that the hardwood was unsalvageable, so it had to be removed and replaced.
Though the cost to replace the hardwood floors came in under budget, replacing the
damaged subfloor beneath it incurred additional costs that were not included in the
original proposal.
Deering also found structural problems in the ceiling, caused by termite
damage and poor past-renovation work. The ceiling was sagging because a wall had
been removed but a proper header had not been installed. Deering testified that they
had not known about it until they began work because it was not visible from below.
Repairing the damaged floors and ceiling incurred an additional $1,800 cost beyond
the original proposal.
2. Painting
Painting and trim work also cost more than expected—originally budgeted at
$7,800, the final cost was $11,658. Deering alleged that Trey instructed the painter to
strip the paint on the doors to the bedroom and hallway—tasks that were not
included in the original proposal—and that the painter stripped cabinets that he
should not have, causing extra work. When it came to trim work, Deering alleged that
the Easons asked for items outside the original scope of work, including “modifying
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the pantry door [and] install[ing] glass in it.” Trey denied requesting any additional
painting or trim work.
When Deering invoiced the Easons for the painting and trim work, he only
charged them $7,800 but noted on the invoice: “Actual invoice amount was
$11,658.00, will reconcile at end of project.” He explained at trial that he had hoped
that shortages in other areas of the project would cover that additional expense.
3. Countertops and Tiling
Deering also averred that some of the Easons’s choices for materials and
fixtures exceeded the originally planned allowances. Deering had allowed $7,380 for
countertops, including labor and installation, but the Easons’s choices exceeded that
amount in the materials cost alone. Trey even admitted at trial that their countertop
choices exceeded the allowance without accounting for labor and installation.
Similarly, the Easons chose tiles that had to be individually cut and laid, causing
five more days of labor to install than initially expected. Deering testified that the
original allowance for tile-installation labor was $400 but the end cost was $1,440.
Trey testified that Deering never indicated that the installation would be more costly.
4. Appliances
The appliances also cost more than originally expected, and Deering averred
that Trey approved the appliance invoices before they were ordered. Whereas the
5
proposal provided $10,711.24, the appliances actually cost $13,611.23.3 The Easons
argued that they paid these costs in response to two invoices by Deering charging
$12,024.70 and $1,421.28 for appliance costs.
5. Design Work
Deering testified that design work for drawing cabinet and pantry plans cost
$2,475.00 and was not billed at the time it was completed in November. He also
averred that the Easons approved the design work.
C. DEERING’S OFFER TO FOREGO PROFIT
In early December, when the Easons raised concerns about staying on budget,
Deering offered to stop billing his overhead and profit—an offer the Easons
accepted. Deering testified that the Easons never mentioned not paying for overages,
but instead paid every invoice up until the “very end of the project.” In all, the
Easons paid Deering $113,722.
D. THE EASONS’S REFUSAL TO PAY FOR OVERAGES
After the work was finished, Deering met with the Easons in early
February 2017 to discuss two unpaid invoices—invoices 4899 and 4830. Invoice
4899 listed all of the unpaid costs and overages for the project as follows:
3
Deering had accidently neglected to include the refrigerator in the original
proposal, estimating only $8,211.24 for appliance costs. In November, Deering
revised the original proposal to include a refrigerator, raising the estimated appliance
cost to $10,711.24 and the estimated overall cost to $115,560.04.
6
Draw on additional plumbing labor & materials as per Hargis $1,744.58
Plumbing proposal:
Draw on appliance cost overrun as per Texas Appliance $2,734.74
quote:
Draw on additional framing labor for removing additional $1,800.00
layer of flooring, repairing termite damage and reworking
ceiling joist in breakfast area:
Draw on design work for drawing cabinet and pantry plans: $2,475.00
Draw on additional painting labor & materials for stripping $1,440.00
doors, windows & existing cabinets:
Draw on additional labor and materials for installing $1,000.00
wainscoting and installing diamond tile not on original
proposal:
Total $11,194.32
Invoice 4830 listed Deering’s 18% overhead and profit that he had incurred but
not billed the Easons for after their December agreement; it totaled $14,770. Deering
offered to forgive the $14,770 if the Easons paid the $11,194, but the Easons declined
his offer.
E. THE SUIT AND THE TRIAL COURT’S JUDGMENT
Deering subsequently filed suit against the Easons, alleging claims for breach of
contract and quantum meruit. At trial, he asked the court to award him $25,671.82,
but the trial court made clear that it believed Deering had waived any recovery of the
18% overhead and profit incurred after the December agreement and reflected in
invoice 4830.4
4
Deering does not appeal this finding.
7
The trial court found in favor of Deering and awarded $9,449.74 in damages
and $30,000 in attorney’s fees, as well as conditional appellate fees. In a hearing on
the Easons’s motion for new trial, the trial court admitted that it had declined to
award the plumbing overages claimed on Invoice 4899,5 thus reaching the $9,449.74
sum. It also issued findings of fact and conclusions of law, including the following:
- The parties verbally agreed to a “cost-plus” arrangement in which
Deering would perform all work requested based on his cost plus 18
percent for overhead and profit.
- Deering invoiced the Easons for work performed based on his costs
incurred and, initially, he included his eighteen percent overhead and
profit in the invoices but later offered to forgo that overhead and profit.
- In total, Deering invoiced $132,278.76, of which the Easons paid
$113,722.93.
- $9,373 in overhead and profit was not billed.
- The total amount due to Deering was $9,449.74.
- The Easons breached the verbal contract with Deering and therefore
owed him $9,449.74.
- Alternatively, Deering was entitled to recover $9,449.74 in quantum
meruit because he performed valuable services for the Easons and the
Easons knew or reasonably should have known Deering expected to be
paid for those services.
This appeal followed.
II. DISCUSSION
The Easons bring six points on appeal, which can be categorized as contesting
(1) the sufficiency of the evidence to support Deering’s recovery on his breach-of-
5
Deering does not appeal this finding.
8
contract claim; (2) Deering’s alternative recovery based on quantum meruit; and
(3) Deering’s recovery of $30,000 in attorney’s fees.
A. BREACH OF CONTRACT
The Easons’s first two points argue that the evidence is legally and factually
insufficient (1) to support the trial court’s conclusion that they breached their contract
with Deering and (2) to support the award of damages.
1. Standard of Review
A trial court’s findings of fact have the same force and dignity as a jury’s
answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.
1991). As with jury findings, a trial court’s fact-findings on disputed issues are not
conclusive, and, when the appellate record contains a reporter’s record, an appellant
may challenge those findings for evidentiary sufficiency. Catalina v. Blasdel, 881
S.W.2d 295, 297 (Tex. 1994); Super Ventures, Inc. v. Chaudhry, 501 S.W.3d 121, 126
(Tex. App.—Fort Worth 2016, no pet.). We review the sufficiency of the evidence
supporting challenged findings using the same standards that we apply to jury
findings. Catalina, 881 S.W.2d at 297.
We may sustain a legal-sufficiency challenge—that is, a no-evidence
challenge—only when (1) the record bears no evidence of a vital fact, (2) the rules of
law or of evidence bar the court from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere
scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Shields
9
v. Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017); see also Ford Motor Co. v.
Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh’g); Uniroyal Goodrich Tire Co. v.
Martinez, 977 S.W.2d 328, 334 (Tex. 1998) (op. on reh’g). In determining whether
legally sufficient evidence supports the finding under review, we must consider
evidence favorable to the finding if a reasonable factfinder could and must disregard
contrary evidence unless a reasonable factfinder could not. Cent. Ready Mix Concrete
Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802,
807, 827 (Tex. 2005). We indulge “every reasonable inference deducible from the
evidence” in support of the challenged finding. Gunn v. McCoy, 554 S.W.3d 645, 658
(Tex. 2018).
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing all
the pertinent record evidence, we determine that the credible evidence supporting the
finding is so weak, or so contrary to the overwhelming weight of all the evidence, that
the finding should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
2. Analysis
The Easons object to the trial court’s findings that the parties agreed to a cost-
plus arrangement, that they breached that agreement, and that they owe Deering
$9,449.74. We disagree with the Easons’s assertion that they did not enter into and
10
subsequently breach a cost-plus arrangement, but we agree with them in part as to the
amount of damages supported by the evidence.
a. Existence of a Cost-Plus Agreement
Deering testified that he has never, in over 20 years of business, entered into a
fixed-price contract and that he did not do so in this case. He described how doing so
would be, in his view, impossible because of the unknowns of home renovations,
particularly of an older home such as the Easons’s 1930s Tudor. He explained his use
of allowances to estimate the costs for such unknowns, including the Easons’s
eventual fixture choices. And he explained that the Easons made changes along the
way that incurred additional costs and that they approved those additional costs.
Finally, Deering denied ever promising the Easons that the proposal price was firm or
that he would cover any overages.
This evidence is legally sufficient to support the trial court’s finding that the
parties entered into a cost-plus agreement. It is also factually sufficient. The
determination essentially boiled down to a fact dispute between Deering and the
Easons regarding the nature of their agreement, and the trial court was in the best
position to judge their credibility and to conclude that they did not enter into a fixed-
price contract. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003). We therefore overrule the Easons’s complaints of the sufficiency of the
11
evidence supporting the trial court’s finding that they entered into a cost-plus
agreement with Deering.6
b. The Easons’s Breach of the Cost-Plus Agreement and Damages
Having held that the trial court did not err by finding that the parties entered
into a cost-plus agreement, we now turn to the Easons’s interrelated arguments that
(1) they did not breach the agreement because they either paid the amounts sought
from them in Invoice 4899 or those amounts were not part of their agreement with
Deering, and (2) that the $9,449.74 damage award is not supported by sufficient
evidence.
The trial court’s award of $9,449.74 corresponded to Deering’s requests in
invoice 4899 for: (1) $2,734.74 in appliance overruns; (2) $1,800 in additional framing
labor for flooring, termite damage, and ceiling repairs; (3) $2,475 in design work for
cabinet and pantry plans; (4) $1,440 in additional painting labor and materials; and
(5) $1,000 for additional trim and tile work. The Easons’s arguments pick apart those
numbers as either already having been billed in prior invoices or as being outside the
scope of their agreement. In response, Deering essentially argues that it incurred
significantly more in costs than the Easons have been ordered to pay. Both parties
are right in some respects and wrong in others.
6
In light of this holding, we need not address the Easons’ third and fourth
points, contesting Deering’s alternative recovery under quantum meruit. See Truly v.
Austin, 744 S.W.2d 934, 936 (Tex. 1988); City of Fort Worth v. Gene Hill Equip. Co., Inc.,
761 S.W.2d 816, 821 (Tex. App.—Fort Worth 1988, no writ).
12
In a cost-plus arrangement, one party undertakes to pay all costs incurred by
the other party in the performance of his contractual duties, plus a fixed fee over and
above such reimbursable services. See Sage St. Assocs. v. Northdale Const. Co.,
863 S.W.2d 438, 442 (Tex. 1993); Gay v. Stratton, 559 S.W.2d 131, 132 (Tex. App.—
Texarkana 1977, writ ref’d n.r.e.). In suing on a cost-plus contract, the plaintiff’s
burden is to prove the contract, the breach, and the total reimbursable costs. Sage St.
Assocs., 863 S.W.2d at 442. Deering’s assertion that it incurred over $130,000 and so
was entitled to the $9,449.74 awarded by the trial court is not, by itself, enough to
meet the burden to establish its reimbursable costs, particularly in light of its
agreement to waive any overhead and profit incurred after early December.
Deering invoiced the Easons weekly, accompanied with any applicable bills or
other documentation to support the charges listed on the invoices. There is no
dispute that the Easons paid all of the invoices other than invoices 4830 and 4899. As
it underlies the trial court’s award, we will only examine invoice 4899.
We first turn to those items on the invoice that are supported by legally and
factually sufficient evidence: the charges for additional labor related to the floors and
ceilings, the design-plan work, the additional painting labor and materials, and the
additional wainscoting and tilework.
(1.) Flooring and ceiling work
Invoice 4899 requested payment of $1,800 for “Draw on additional framing
labor for removing additional layer of flooring, repairing termite damage and
13
reworking ceiling joist in breakfast area.” Deering explained in some detail at trial the
unexpected costs that arose in repairing extensive termite damage to the floors,
subfloors, and ceilings, as well as the additional labor required to remove multiple
layers of flooring that had been laid over the years. In particular, replacing the
damaged subfloor added additional costs not included in the original proposal. This
was also reflected in presuit correspondence between the parties in which Deering
explained that they had to remove pine flooring in the kitchen that did not match oak
flooring elsewhere in the home and that the breakfast area floors were “in such bad
shape” they had to remove and replace them; he also reminded Trey that though he
had “allowed for the flooring to be installed, sanded[,] and finished[, he] did not allow
for labor to remove them.” Opening the ceilings also revealed that in a past
renovation, the ceiling had not been properly framed and required the installation of a
proper header to remedy sagging.
To rebut Deering’s testimony that repairing this damage cost an additional
$1,800, the Easons argued that they had paid all costs related to any additional labor in
connection with the flooring, termite damage, or ceilings prior to the issuance of
invoice 4899. But Deering explained at trial that the $1,800 was the unpaid overage,
in addition to those costs which had already been paid in connection with the flooring
and ceiling repairs.
14
As the factfinder, it was the trial court’s role to weigh Deering’s credibility
regarding this overage in light of his testimony to the unexpected repairs. The
evidence is legally and factually sufficient to support the trial court’s determination.
(2.) Design work
Next we turn to Deering’s charge of $2,475 in design work for the cabinet and
pantry plans. Deering testified that this work was not charged at the time it was
completed in November—prior to his agreement to forego his overhead (which
included design work) and profit—and that the Easons approved the design work. In
fact, there is correspondence included in the record between the parties in which Trey
asked about the cabinet and pantry plans and requested certain changes and
considerations. The Easons refute any agreement to the design work and argue that
the work was never included in any proposal. Again, it was the trial court’s role as the
factfinder to weigh the parties’ credibility and it was entitled to believe Deering’s
testimony that the Easons agreed to this overhead cost prior to Deering’s December
agreement to forego his overhead costs; we will not disturb its determination and hold
the evidence legally and factually sufficient to support this cost.
(3.) Painting
Deering explained that the painting labor and materials cost $1,440 over the
amount paid by the Easons, and attributed this overage to Trey’s direction to the
painters to strip and paint the doors to the bedroom and hallway, additional tasks not
included in the original scope of work. Though Trey denied making any such request,
15
it was again within the trial court’s province to settle this factual dispute based on its
determination of the parties’ credibilities. With Deering’s testimony and the invoice
on which Deering only billed the Easons $7,800 for painting and trimwork but noted,
“Actual invoice amount was $11,658.00, will reconcile at end of project,” the evidence
is sufficient to support Deering’s recovery of this cost.
(4.) Trimwork and Tiling
Finally, invoice 4899 seeks payment for $1,000 for “installing wainscoting and
installing diamond tile not on original proposal.” Deering testified that the Easons
requested wainscoting that was not part of the original proposal; this is also reflected
in presuit correspondence between the parties in which Deering stated, “I did not
initially know about the wainscot . . . .” Additionally, Deering explained that the
Easons requested additional trimwork by asking for glass in the pantry doors.
He also testified that their choice of individual, diamond-shaped tiles, which
had to be individually cut and laid, added a $1,000 cost beyond the original allowance
for tilework. The Easons’s argument focuses only on this tilework, arguing that the
only invoice in the record was for $1,000, which they paid (and their payment is not
disputed by Deering). But the Easons offer no argument for Deering’s assertion that
their choices to add wainscoting and to modify the pantry door also added to the
project cost, nor have we seen any contradiction of those facts in the record. We
therefore cannot disturb the trial court’s determination and hold that the $1,000
charge is supported by sufficient evidence.
16
(5.) Appliances
While the evidence is sufficient to uphold four of the five line items awarded to
Deering, we cannot say the same for the claimed $2,734.74 appliance-cost overage.
There are two invoices from Texas Appliance included in the record: one for
$12,024.70 and one for $1,421.28 Both invoices are labeled with Texas Appliance
invoice number 04118571. The $12,024.70 invoice lists an Electrolux beverage
center, an AGA range, and a large french-door refrigerator. The $1,421.28 invoice
lists a vent-a-hood. Correspondingly, a January 19, 2017 invoice from Deering lists a
$12,024.70 charge for “Draw on Electrolux bev center, AGA 44” dual range & lrg
French door refridgerator as per Texas Appliance, inv. #041185711.” A second
Deering invoice, issued February 2, listed a $1,421.28 charge for “Draw on VAH
Vent-A-Hood 46” Liner as per Texas Appliance, inv. #04118571.” Deering admitted
that the Easons paid both of those Deering invoices, but provided no explanation for
the claimed $2,734.74 appliance overage listed on invoice 4899.
Without any such explanation and even viewing the evidence in Deering’s
favor, the claimed Texas Appliance overage is not supported by the evidence, and
therefore the $9,449.74 damage award is not supported by factually sufficient
evidence.
c. Remittitur is the proper remedy
Having held that the overall award of $9,449.74 is not supported by factually
sufficient evidence, we must now determine the proper remedy. The Easons ask us to
17
reverse and render a take-nothing judgment, but that is not the proper remedy where
there is evidence to support some, but not all, of the damages awarded. See Garza v.
Cantu, 431 S.W.3d 96, 106–07 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
Nor is Deering entitled to any portion of the award that the evidence does not
support. See id.This leaves us with the options of granting a remittitur or remanding for a new
trial. See Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex. 2007). Because we can easily
determine the amount of remittitur here—by simply deleting the unsubstantiated
appliance overage from the award—we choose that route and suggest a remittitur of
$2,734.74 for the amount of damages awarded. If, within fifteen days of the date of
this opinion, Deering files a remittitur of $2,734.74, then our subsequent judgment
will reform the trial court’s judgment in accordance with the remittitur and, as
reformed, affirm that judgment. See Tex. R. App. P. 46.3, 46.5. Unless a voluntary
remittitur is timely filed, we will reverse the trial court’s judgment and remand the case
to the trial court for a new trial on the issues of liability and damages. See Tex. R.
App. P. 44.1(b); Willis v. Donnelly, 199 S.W.3d 262, 276 & n.27 (Tex. 2006).
B. ATTORNEY’S FEES
The Easons’s final two points take aim at the $30,000 fee award to Deering.
First they argue that the award is precluded by the excessive-demand doctrine; second,
they assert that the award is not supported by sufficient evidence. We will address
each in turn.
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1. Excessive Demand
The excessive-demand rule precludes a creditor from recovering its attorney’s
fees if it made an excessive presuit demand upon the debtor. Findlay v. Cave,
611 S.W.2d 57, 58 (Tex. 1981). The dispositive inquiry is not whether the amount
awarded at trial is less than that demanded; rather, the focus is upon whether the
claimant acted unreasonably or in bad faith. Hernandez v. Lautensack, 201 S.W.3d 771,
777 (Tex. App.—Fort Worth 2006, pet. denied). Application of this rule is limited to
situations where the creditor refuses a tender of the amount actually due or indicates
clearly to the debtor that such a tender would be refused. Findlay, 611 S.W.2d at 58.
The Easons argue that Deering demanded $25,671.82—the sum of invoices
4830 and 4899—but that he later acknowledged at trial that he never intended to
collect on invoice 4830, which reflected the $14,770 in overhead and profit Deering
incurred after early December. But Deering testified at trial that at the parties’ early
February meeting, he presented both invoices and only requested payment of invoice
4830, the $11,194.32 claimed overages, and agreed to waive his recovery of the
$14,770 in overhead and profit. 7 We have upheld Deering’s recovery of $6,715, and
we disagree with the Easons’s allegations that Deering acted in bad faith by making an
excessive demand. We therefore overrule their fifth point.
7
Deering also testified that this offer was reflected in a letter from his attorney
to the Easons.
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2. Evidentiary Sufficiency
In their sixth and final point, the Easons argue that there is legally and factually
insufficient evidence to support the $30,000 attorney’s fee award to Deering.
Deering’s trial attorney testified to his education and more than twenty years’
of practice, his civil-trial-law board certification, and his practice in the metroplex
area. He further testified to his familiarity with fees charged by similarly situated
attorneys and to his hourly rate, as well as to the rates and qualifications of his
associates. He explained that Deering was charged for work performed on an hourly
basis and his opinion that the fees charged were reasonable and necessary to litigate
Deering’s claims. He further described:
In this case we have charged approximately $38,650 through this trial,
which includes my estimate of the length of this trial and an additional
five hours of time spent on post-trial motions before there is a judgment
signed. I believe that that is a reasonable rate for necessary work that’s
been performed.
....
That includes approximately 142 hours of time.
....
We keep contemporaneous time records of our time and all of
that work included everything that we have done, including preparation
of the motions, pleadings, objections, claims, correspondence for the
client, correspondence for the Court, correspondence for opposing
counsel, legal research, discovery, we took the depositions of two
witnesses, and other issues that required time from the attorney.
20
The Easons argue that this testimony was not enough to meet the standards as
recently clarified by the Supreme Court in Rohrmoos Venture, 578 S.W.3d 469. We
agree. Rohrmoos built upon the Supreme Court’s fee-award caselaw establishing that
the starting point for calculating an award is determining the reasonable hours worked
multiplied by a reasonable hourly rate. Id. at 498 (citing El Apple I, Ltd. v. Olivas,
370 S.W.3d 757, 760 (Tex. 2012)). The fee claimant bears the burden of providing, at
a minimum, “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.While Deering’s counsel testified to the aggregate amount of fees and the
general tasks carried out by himself and his two associates, this sort of evidence has
been held to be insufficient. In Rohrmoos, for example, the fee-seeking party testified
generally to his and his staff’s review of “millions’ of emails and reviewing ‘hundreds
of thousands’ of papers in discovery, more than forty depositions taken, and a forty-
page motion for summary judgment,” but the Supreme Court held this was “too
general to establish that the requested fees were reasonable and necessary. Without
detail about the work done, how much time was spent on the tasks, and how he
arrived at the $800,000 sum, Howard’s testimony lacks the substance required to
uphold a fee award.” Id. at 505. See also Sloane v. Godberg B’Nai B’Rith Towers,
577 S.W.3d 608, 621 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (reversing fee
21
award where attorney “conceded that he had not allocated hours spent on particular
tasks” and supporting invoices did not break down tasks by time spent).
In response, Deering argues that Rohrmoos is not applicable here because this
case was tried before the Rohrmoos decision was handed down. But Deering provides
no authority for its argument, and the proper remedy in this situation is to remand the
issue for a redetermination of fees. See Barnett v. Schiro, 579 S.W.3d 73, 74 (Tex. 2019)
(remanding for reconsideration of fee award following the court’s clarification in
Rohrmoos of existing caselaw); Estate of Stokes, No. 02-18-00234-CV, 2019 WL
4048863, at *2 (Tex. App.—Fort Worth Aug. 28, 2019, no pet.) (“Because this recent
supreme court authority has materially affected and provided guidance to central
questions in the underlying trial for attorney’s fees here, we reverse the judgment and
remand the case for another trial to determine an appropriate award [of fees].”). See
also, Sloane, 577 S.W.3d at 622 (“The proper remedy in cases where the evidence fails
to satisfy the standards for determining fees . . . is to remand the issue for a
redetermination of fees.”).
We therefore sustain the Easons’s sixth point.
III. CONCLUSION
Having sustained the Easons’s second point, we suggest that Deering remit
$2,734.74, representing that portion of the judgment awarding Deering damages for
appliance overages. If remittitur is filed within fifteen days of this date, we shall
affirm the judgment as modified to reflect the proper amount of damages. If
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remittitur is not filed within fifteen days, we shall reverse and remand for new trial on
the issues of liability and damages.
Having sustained the Easons’s sixth point, and regardless of Deering’s decision
whether to remit, we reverse the trial court’s judgment as to attorney’s fees and
remand that portion of its decision for a new trial.
We overrule the remainder of the Easons’s arguments.
/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: December 3, 2020
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