Ted B. Lyon III v. Building Galveston, Inc.

Opinion issued December 17, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00571-CV
———————————
TED B. LYON III, Appellant
V.
BUILDING GALVESTON, INC., Appellee
And
BUILDING GALVESTON, INC., Appellant
V.
TED B. LYON III, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case No. 10-CV-2353
MEMORANDUM OPINION
This is the second appeal in an ongoing dispute between Ted B. Lyon III and
Building Galveston, Inc. (BGI). In the first appeal, this Court reversed the portion of
the trial court’s judgment rendered in BGI’s favor on its fraudulent lien and invalid
lien claims and the award of attorney’s fees to BGI based on those claims. Lyon v.
Bldg. Galveston, Inc., No. 01-15-00664-CV, 2017 WL 4545831 (Tex. App.—
Houston [1st Dist.] Oct. 12, 2017, pet. denied) (mem. op.) (Lyon I). We also reversed
the trial court’s denial of attorney’s fees to BGI on its breach of contract claim, and
we “remand[ed] for further proceedings on the attorney’s fees issue.” Id. at *13. On
remand, a visiting judge reviewed the transcripts from the original bench trial on
attorney’s fees and, after hearing the parties’ arguments, awarded BGI attorney’s
fees based on its breach of contract claim. Lyon and BGI are appealing the trial
court’s judgment.
In six issues with multiple sub-parts, Lyon argues that: (1) the visiting judge
erred by not granting him a jury trial on the issue of attorney’s fees on remand, and
relying instead upon the transcripts of the 2015 bench trial; (2) the district court
judge who presided over the 2015 bench trial on attorney fees abused her discretion
by admitting BGI’s billing records over Lyon’s objections (Plaintiff’s Exhibit 45);
(3) the visiting judge abused her discretion by considering evidence from a
mediation proceeding; (4)(a) there is legally and factually insufficient evidence
2
supporting the visiting judges’ awards of trial and appellate fees to BGI; (4)(b) the
visiting judge “improperly sua sponte awarded appellate fees [to BGI]
unconditionally for the parties’ earlier appeals in this case”; (5) the visiting judge’s
judgment is void or voidable because she was not authorized to “complete the April
2015 bench trial and to purportedly find facts in 2019 on disputed 2015 evidence”
in violation of Lyon’s rights under the Texas and United States constitutions; and
(6) the visiting judge’s judgment is void or voidable because, among other things,
she did not preside over the 2015 bench trial on which her judgment on remand is
based. BGI raises several counterpoints to these issues.1
In one issue, BGI argues that the trial court erred in failing to award BGI
conditional appellate attorney fees.
We set aside the trial court’s judgment and dismiss the appeal for want of
jurisdiction.
1
Although identified as “cross-points,” BGI’s arguments are more accurately
described as “counter-points” because their function is to show that Lyon’s position
is wrong. See Dudley Constr., Ltd. v. Act Pipe & Supply, Inc., 545 S.W.3d 532, 538
(Tex. 2018) (“Counter-points assist the appellate court in finding the answers given
to the points of the appellant. From the standpoint of the advocate, their function is
to show that the point or points of the opposite party are not valid.”) (internal
quotations omitted).
3
Background2
In 2010, Lyon, on behalf of his construction company, and BGI entered into
a subcontract agreement whereby Lyon’s company agreed to serve as BGI’s
subcontractor for a project remodeling a bakery. See Lyon I, 2017 WL 4545831 at
*1. After BGI fired Lyon, Lyon filed a mechanic’s and materialman’s lien on the
property and sued the bakery’s owners to foreclose on the lien.3 BGI intervened in
the suit several months later and asserted claims against Lyon, including claims for
breach of contract and filing of a fraudulent lien. Id.After a November 2013 trial on the liability issues, the jury found in BGI’s
favor with respect to its breach of contract and invalid and fraudulent lien claims. Id.The trial was presided over by District Court Judge Michelle Slaughter.
The issue of attorney’s fees was tried to the bench by agreement of the parties
five months later on April 17, 2015. Id. at *2. On April 9, 2015, eight days before
the bench trial, BGI filed a supplemental petition in which it alleged that BGI had
presented its claim for damages to Lyon more than thirty days before the filing of
2 The procedural and factual histories of this case were set forth in our first opinion.
See Lyon v. Bldg. Galveston, Inc., No. 01-15-00664-CV, 2017 WL 4545831 (Tex.
App.—Houston [1st Dist.] Oct. 12, 2017, pet. denied) (mem. op.) (Lyon I). Because
this case is on remand and the parties are familiar with the history of this case, we
will not repeat it here except as necessary to advise the parties of the Court’s
decision and the basic reasons for it. See TEX. R. APP. P. 47.1, 47.4.
3
For ease of reference, we will refer to Lyon and his companies as “Lyon” in this
background section.
4
the supplemental petition and that Lyon had failed to pay BGI’s damages within
thirty days from presentment. Id.4 Judge Slaughter denied BGI’s motion for leave to
file its supplemental petition because the petition was untimely. Id. at *8. Judge
Slaughter, however, allowed BGI to put on testimony and offer evidence attempting
to establish presentment during the trial over Lyon’s objection. Id.
At the conclusion of the bench trial, Judge Slaughter took under advisement
several objections made by Lyon to BGI’s evidence. Judge Slaughter subsequently
signed a final judgment in the suit in which she sustained Lyon’s objection to BGI’s
evidence of presentment because BGI had not pleaded presentment of its claims as
4
Texas Civil Practice and Remedies Code section 38.001 authorizes recovery of
attorney’s fees on a breach-of-contract claim. TEX. CIV. PRAC. & REM. CODE
§ 38.001(8). Before a party is entitled to attorney’s fees pursuant to section 38.002,
however, the party must plead and prove that it presented its claim for damages to
the opposing party and the opposing party refused to pay. TEX. CIV. PRAC. & REM.
CODE § 38.002; see Lyon I, 2017 WL 4545831, at *11 (citing Gibson v. Cuellar,
440 S.W.3d 150, 157 (Tex. App.–Houston [14th Dist.] 2013, no pet.)); Sacks v. Hall,
481 S.W.3d 238, 251 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (stating
party “did not specifically plead that he had presented his breach of contract claim
to Sacks, as he was required to do to recover attorney’s fees under Chapter 38”); see
also Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916, 924 (Tex. App.—
Houston [14th Dist.] 2014, no pet.) (“The claimant bears the burden of both pleading
and proving presentment.”). Specifically, section 38.002 requires that:
(1) the claimant must be represented by an attorney;
(2) the claimant must present the claim to the opposing party or to a duly
authorized agent of the opposing party; and
(3) payment for the just amount owed must not have been tendered before
the expiration of the 30th day after the claim is presented.
TEX. CIV. PRAC. & REM. CODE § 38.002.
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required to recover attorney’s fees under Chapter 38 of the Texas Civil Practice and
Remedies Code. Id. As a result of this ruling, Judge Slaughter did not rule on Lyon’s
other objections to BGI’s evidence of presentment, which she considered to be moot.
Id. The judgment also awarded BGI approximately $15,000 in damages on its breach
of contract claim, approximately $30,000 in damages on its fraudulent lien claim,
and over $142,000 in attorney’s fees for its fraudulent lien and invalid lien
claims, but no attorney’s fees on its breach of contract claim.
On appeal, this Court held that there was legally insufficient evidence to
support the jury’s findings that the lien was invalid, and that Lyon had filed a
fraudulent lien. Id. at *6. Accordingly, we reversed the trial court’s judgment and
rendered judgment in favor of Lyon with respect to these claims. Because the award
of attorney’s fees was based on these claims, we “reverse[d] the trial court’s award
of attorney’s fees to BGI in its entirety and remand[ed] that issue to the trial court
for further proceedings.” Id. at *6. We also held that the trial court erred by denying
BGI’s motion for leave to amend its pleading to more specifically allege
presentment, and that the error was harmful because, although disputed, BGI had
offered some evidence of presentment during the bench trial. Id. at *13.
After this court’s mandate issued, BGI filed a motion for judgment post appeal
in the trial court, but no action was taken on the matter before Judge Slaughter left
the bench on December 31, 2018. Judge Sylvia Matthews, who was assigned to the
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district court in February 2019 to hear cases and dispose of any accumulated business
requested by the court, see TEX. GOV’T. CODE § 74.056, held two hearings in this
remand proceeding in February and April 2019. No testimony was presented during
either hearing. Judge Matthews did, however, hear arguments from counsel on
several issues during these hearings, including whether she could rely on the record
from the April 2015 bench trial in order to determine whether BGI was entitled to
recover attorney’s fees on its breach of contract claim pursuant to Chapter 38, and if
so, the amount of BGI’s reasonable and necessary fees, as opposed to holding a new
trial to resolve these questions, and, if she had to hold a trial, whether it was required
to be a jury trial, as Lyon argued. The court also heard arguments on Lyon’s
objections to evidence that BGI had offered during the 2015 bench trial that Judge
Slaughter had not ruled on. The evidence at issue was a mediation PowerPoint
(Exhibit 42), one of BGI’s discovery responses (Exhibit 43), and an email between
BGI’s and Lyon’s counsel (Exhibit 44).
Judge Matthews subsequently entered an order on BGI’s motion for judgment
post appeal in which she determined that she was not required to hold a new trial on
the issue of attorney’s fees and could rely on the record from the April 2015 bench
trial, and she denied Lyon’s request for a jury trial. Judge Matthews granted BGI
leave to file its supplemental petition alleging presentment, sustained Lyon’s
objection to the mediation PowerPoint (Exhibit 42), overruled Lyon’s objections to
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the discovery response and the email and admitted those two exhibits. (Exhibits 43
and 44) and granted BGI’s request for attorney’s fees on its breach of contract claim.
The same day, Judge Matthews also entered a final judgment after remand, in
which she awarded BGI approximately $15,000 in damages on its breach of contract
claim, pre-judgment interest on the claim, reasonable and necessary attorney’s fees
incurred through trial in the amount of $155,228.10, $20,000 in attorney’s fees for
prevailing in this Court during the first appeal, and $10,000 in attorney’s fees for
defending against Lyon’s unsuccessful petition for review to the Supreme Court of
Texas.
BGI and Lyon are appealing that final judgment.
Jurisdiction
In its sixth issue, Lyon argues that Judge Matthews’ final judgment on remand
is void because she did not hear the evidence on which the judgment is based.
Because appellate courts do not have subject matter jurisdiction over void
judgments, we will address this issue first. See Malone v. PLH Group, Inc., 570
S.W.3d 292, 296 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (citing Freedom
Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 624 (Tex. 2012)).
The rules of practice and procedure in civil district court allow judges to
exchange courts and transfer cases from one court to another and permit a practice
in which one judge hears a part of a case and determines some issues while another
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judge completes the case. See Malone, 570 S.W.3d at 294–95 (citing to TEX. R. CIV.
P. 18, 330(e), 330(g) and Masa Custom Homes, LLC v. Shahin, 547 S.W.3d 332,
335 (Tex. App.—Dallas 2018, no pet.)). However, “neither the rules nor case law
permit one judge to preside over the entire bench trial and a visiting judge, who heard
no evidence, to render a judgment based on disputed facts.” See Malone, 570 S.W.3d
at 295 (citing to Masa Custom Homes, 547 S.W.3d at 335–36). As the finder of fact
during a bench trial, the trial judge assesses the witnesses’ credibility and the weight
of the evidence and resolves factual disputes. See Malone, 570 S.W.3d at 295 (citing
to Masa Custom Homes, 547 S.W.3d at 337). A judge who did not preside over some
or all the trial may make substantive legal decisions, but only if the decision does
not require the judge to find facts based on evidence he has not heard. See Malone,
570 S.W.3d at 295; Masa Custom Homes, 547 S.W.3d at 336. A judgment rendered
following a bench trial by a judge who has heard no evidence is void. See Malone,
570 S.W.3d at 295; Masa Custom Homes, 547 S.W.3d at 338.
Judge Slaughter, who presided over both the 2013 jury trial on the merits and
the 2015 bench trial on attorney’s fees, was no longer on the district court bench
when the matter was taken up on remand in 2019. Judge Matthews presided over the
new proceedings and rendered judgment based on the record of the 2015 bench trial
on attorney’s fees, “including admitted evidence,” and the arguments of the parties.
It is undisputed that Judge Matthews did not hear any testimony in this case.
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BGI argues that Judge Matthews’s judgment rendered on remand is not void
and that it was not necessary for Judge Matthews to hold a new trial on the issue of
attorney’s fees because BGI proved presentment as a matter of law, and, unlike in
Malone and the other opinions relied upon by Lyon, there are no disputed facts or
contradictory evidence that would require Judge Matthews to assess witness
credibility or resolve questions of fact.
As the Court explained in the prior opinion in this case, presentment is
generally a fact issue. Lyon I, 2017 WL 4545831, at *11 (citing Genender v. USA
Store Fixtures, LLC, 451 S.W.3d 916, 924–25 (Tex. App.—Houston [14th Dist.]
2014, no pet.). Like other issues of fact, however, presentment may be decided as a
matter of law if the evidence of presentment is conclusive. See United Servs. Auto.
Ass’n v. Hayes, 507 S.W.3d 263, 282 (Tex. App.—Houston [1st Dist.] 2016, pet.
granted, judgm’t vacated w.r.m.) (“A proposition is established as a matter of law
when a reasonable fact finder can draw only one conclusion from the evidence
presented.”); see also City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)
(“Evidence is conclusive only if reasonable people could not differ in their
conclusions, a matter that depends on the facts of each case.”); Svoboda v. Thai, No.
01-17-00584-CV, 2019 WL 1442434, at *4 (Tex. App.—Houston [1st Dist.] Apr. 2,
2019, no pet.) (stating that “when the evidence is not conflicting or susceptible of
more than one inference, a factual matter may be determined as a matter of law”).
10
This Court held in Svoboda that Thai, the party requesting attorney’s fees, had
not proven presentment as a matter of law because “a reasonable factfinder could
draw more than one—and conflicting—conclusions about presentment.” Svoboda,
2019 WL 1442434, at *7. In that case, Thai’s attorney testified that he told the
Svobodas’ counsel that “the case would end if the Svobodas paid $8,000” and they
refused to pay. Id. He also sent the Svobodas a letter as part of their settlement
discussions demanding $18,000 and testified that he was “negotiating attorney’s fees
in addition to the $8,000 contract claim.” Id. We held that, although his testimony
provided some evidence of presentment, a reasonable factfinder could have also
determined that presentment had not been established because Thai’s “demand was
always for more than the contract claim.” Id.After reviewing the record from the 2015 bench trial on attorney’s fees, this
Court in Lyon I determined that BGI had produced some evidence of presentment,
and therefore, the trial court’s refusal to grant BGI leave to amend its petition to
plead presentment was harmful. See Lyon, 2017 WL 4545831, at *13. We also held
that there was a fact issue with respect to whether BGI had presented its claim to
Lyon and, therefore, was entitled to recover attorney’s fees pursuant to Chapter 38.
Specifically, we stated that
[A]lthough disputed, the record contains some evidence of
presentment. Whether such evidence demonstrates presentment,
however, is an unresolved question of fact that the trial court would
have resolved, had it not erroneously denied BGI’s motion for leave.
11
Id. at *12 (internal citations omitted). The “law of the case” doctrine mandates that
the ruling of an appellate court on a question of law raised on appeal will be regarded
as the “law of the case” in all subsequent proceedings unless it was clearly erroneous.
See Caplinger v. Allstate Ins. Co., 140 S.W.3d 927, 929 (Tex. App.—Dallas 2004,
pet. denied) (citing Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003));
see generally Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (holding “law
of the case” doctrine applies to questions of law, not questions of fact). BGI argues
that we should reconsider the question of whether presentment poses a question of
fact or law and hold that it established presentment as a matter of law and therefore,
Judge Matthews was allowed to rely upon the record of the April 2015 bench trial.
Even if we were to reconsider our previous holdings on this issue, the result would
be the same.
The evidence of BGI’s presentment in the 2015 bench trial consisted of
testimony from BGI’s attorney, Chris Garcia, and Lyon’s attorney, Josh
Birmingham, BGI’s interrogatory responses, and a PowerPoint presentation that
BGI presented to Lyon during mediation. Specifically, Garcia testified that he spoke
with Birmingham in May 2011 during which time they attempted to resolve their
clients’ claims against one another. See Lyon I, 2017 WL 4545831, at *12.
According to Garcia, each side set forth its position, and identified how it believed
that the contract had been breached and how much it was owed based on that claim.
12
Birmingham, who acknowledged that he had a conversation with Garcia prior to
mediation, did not recall what was discussed. He also testified that BGI never
presented his client with a claim that it could pay without incurring attorney’s fees.
See id. at *12.
Garcia also testified that BGI’s “demand for those damages [based on its
breach of contract claim] were set forth in the last page of Exhibit 42,” which is a
PowerPoint presentation that Garcia made to Lyon during mediation two months
later. According to Garcia, BGI’s damages were also included in its interrogatory
responses, which were provided to Lyon on two occasions prior to trial. BGI’s
mediation PowerPoint states that BGI had incurred over $51,000 in “damages” by
July 2011, including $15,000 in “attorney’s fees and expenses.” Although it
identified the $15,000 in attorney’s fees as part of the amount owed, Garcia testified
that the $15,000 was not part of the claim that Lyon had to pay within 30 days: “If
they wanted to pay 15,000 for attorneys’ fees, it’s Mr. Lyon’s responsibility—or his
right to tender performance if he wanted to. That did not include attorneys’ fees, I
believe.” BGI’s interrogatory responses also identified its attorney’s fees as part of
the amount owed.
As in Svoboda, a reasonable factfinder could conclude from Garcia’s
testimony that BGI presented its claim to Lyon and that Lyon did not pay the claim
within thirty days. A reasonable factfinder, however, could also conclude that BGI
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did not present Lyon with a claim that he could pay without incurring attorney’s fees
because, when BGI presented its claims to Lyon before, during, and after mediation,
these claims included attorney’s fees and were “always for more than the contract
claim.” Svoboda, 2019 WL 1442434, at *7. Therefore, we conclude that BGI did not
conclusively establish presentment as a matter of law during the 2015 bench trial
because reasonable factfinders could draw competing inferences from the evidence
presented at that trial. See id.BGI’s PowerPoint presentation and Garcia’s statements to Lyon during
mediation cannot be used to conclusively establish presentment as a matter of law
for another reason—the presentation and Garcia’s statements are not admissible
pursuant to section 154.073 of the Texas Civil Practice and Remedies Code provides.
Section 154.073 states, in part, that
a communication relating to the subject matter of any civil or criminal
dispute made by a participant in an alternative dispute resolution
procedure, whether before or after the institution of formal judicial
proceedings, is confidential, is not subject to disclosure, and may not
be used as evidence against the participant in any judicial or
administrative proceeding.
TEX. CIV. PRAC. & REM CODE § 154.073(a).
BGI argues that Garcia’s testimony that he presented BGI’s claim to Lyon
during mediation and the PowerPoint presentation used during mediation are not
prohibited by section 154.073 because these are communications that BGI made to
Lyon, not communications by Lyon which BGI is attempting to use against him. A
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“cloak of confidentiality surrounds mediation, and the cloak should be breached only
sparingly.” Allison v. Fire Ins. Exch., 98 S.W.3d 227, 260 (Tex. App.—Austin 2002,
pet. granted, judgm’t vacated w.r.m.); see also Hydroscience Techs., Inc. v.
Hydroscience, Inc., 401 S.W.3d 783, 796 (Tex. App.—Dallas 2013, pet. denied).
“Unless the parties agree otherwise, all matters, including the conduct and demeanor
of the parties and their counsel during the settlement process, are confidential and
may never be disclosed to anyone, including the appointing court.” TEX. CIV. PRAC.
& REM. CODE § 154.053(c); see In re Empire Pipeline Corp., 323 S.W.3d 308, 312
(Tex. App.—Dallas 2010, orig. proceeding) (citing Allison, 98 S.W.3d at 259). The
record reflects that BGI is attempting to use a document it presented, and statements
that Garcia allegedly made, during a confidential mediation proceeding against
Lyon, namely, to establish BGI’s right to collect attorney’s fees from Lyon. The
purpose of mediation is to allow parties to come to the table knowing they can speak
freely about their dispute and be confident that the what occurs during the proceeding
will be kept confidential and, on this record, events in the mediation must remain
confidential. Allison, 98 S.W.3d at 260 (stating that “cloak of confidentiality” that
surrounds mediation “should be breached only sparingly”). Because this evidence is
not admissible, BGI cannot rely upon it to establish presentment as a matter of law.
BGI’s argument that Judge Matthews was entitled to rely entirely upon the
record and transcript from the April 2015 bench trial because there are no disputed
15
facts or contradictory evidence that would require Judge Matthews to assess witness
credibility or resolve questions of fact is unavailing for another reason. Even if there
had not been a question of material fact with respect to the issue of presentment,
Judge Matthews’ judgment on remand would still be void because there is a question
of fact with respect to the reasonableness and necessity of the amount of BGI’s
attorney’s fees. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998) (stating
determination of amount of fees that are reasonable and necessary is question of
fact); see also Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex.
1990) (holding testimony of an interested witness “is taken as true, as a matter of
law,” so long as it “is not contradicted by any other witness, or attendant
circumstances, and the same is clear, direct and positive, and free from contradiction,
inaccuracies, and circumstances tending to cast suspicion thereon”).
During the April 2015 bench trial, Lyon cross-examined BGI’s witnesses
about the reasonableness and necessity of the fees. Notably, Garcia admitted that
BGI was asking for “roughly ten times the amount of damages for the breach of
contract” claim and stated that “too many” lawyers at his firm had worked on the
case over the years. The disparity between the amount in controversy and the amount
of fees requested is an attendant circumstance that serves to contradict BGI’s expert
testimony. See Inwood N. Homeowners’ Ass’n, Inc. v. Wilkes, 813 S.W.2d 156, 158
(Tex. App.—Houston [14th Dist.] 1991, no writ) (“At the very least the amount in
16
controversy in the present case, $649.44, is an attendant circumstance tending to cast
suspicion on the uncontradicted evidence regarding the [$1,486.45] in attorney’s
fee.”).
Judge Matthews did not hear any evidence regarding the amount of reasonable
and necessary attorney’s fees for BGI’s breach of contract claim during the remand
proceedings, and, therefore, her findings of fact and conclusions of law were based
exclusively upon evidence and testimony that she did not hear. Accordingly, we hold
that the evidence admitted during the 2015 bench trial raised questions of material
fact, including a question regarding whether BGI presented its claim to Lyon in
accordance with chapter 38 and is therefore entitled to an award of attorney’s fees
on its breach of contract claim. Because there were disputed questions of fact, Judge
Matthews was not free to render judgment based on the record of the 2015 bench
trial over which she did not preside; Judge Matthews had no choice but to hold a
new trial on the issue of attorney’s fees. Therefore, we hold that judgment Judge
Matthews rendered on remand is void. See Malone, 570 S.W.3d at 295; see also
Masa Custom Homes, 547 S.W.3d at 338. Because the judgment is void, we
conclude that we lack jurisdiction to review the merits of this appeal. Malone, 570
S.W.3d at 296.
17
Conclusion
We dismiss the appeal for want of jurisdiction. Because the trial court’s
judgment is void, it has not entered a final judgment in this case and retains
jurisdiction to conduct a new evidentiary trial, as required, on the issue of attorney’s
fees to determine whether BGI is entitled to attorney’s fees pursuant to Chapter 38,
e.g., whether BGI satisfied all conditions precedent, including proving presentment
and, if the trial court concludes that BGI is entitled to recover its fees, the trial court
should then determine the amount of BGI’s reasonable and necessary attorney’s fees,
and award that amount to BGI.5
5
We note that regardless of whether Lyon was required to file a new written demand
for a jury trial and pay another $10 jury fee in order to be entitled to a jury trial on
remand, he will have the opportunity to meet these requirements after our second
remand. See generally In re Hulcher Servs., Inc., 568 S.W.3d 188, 193 (Tex. App.—
Fort Worth 2018, orig. proceeding) (“We hold that the plain language of the rule 11
agreement waiving a jury on the issue of attorney’s fees in the [earlier] trial does
not unambiguously indicate that the parties intended to waive a jury for any future
trials of the same issue.”); In re Lesikar, 285 S.W.3d 577, 587 (Tex. App.—Houston
[14th Dist.] 2009, orig. proceeding) (stating “waiver of a jury in one trial does not
affect either party’s right to demand a jury in the second trial after remand where
the demanding party has complied with Rule 216”). We also note that regardless of
whether the trial court abused its discretion by denying BGI conditional attorney’s
fees on remand, as BGI contends, BGI will have an opportunity to present its
evidence during the new evidentiary trial. Cf. Young v. Dimension Homes, Inc., No.
01-14-00331-CV, 2016 WL 4536407, at *9 (Tex. App.—Houston [1st Dist.] Aug.
30, 2016, no pet.) (mem. op.) (citing Gill Sav. Ass’n v. Chair King, Inc., 797 S.W.2d
31, 32 (Tex. 1990)) (holding that if trial attorney’s fees are mandatory under section
38.001, then appellate attorney’s fees are also mandatory when proof of reasonable
fees is presented). Similarly, even if the trial court abused its discretion by admitting
BGI’s billing records over Lyon’s objections during the April 2015 bench trial, BGI
will have an opportunity to present evidence supporting its claim for attorney’s fees
during the new evidentiary hearing.
18
Any pending motions are dismissed as moot.
Russell Lloyd
Justice
Panel consists of Justices Keyes, Lloyd, and Hightower.
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