Commerce Street Capital, LLC v. Durant Bancorp,Inc., NAB Acquisition Corp., First United Bank & Trust Company North American Bancshares, Inc. & American Bank of Texas

Reversed and Rendered in part; and Affirmed in part; and Opinion Filed
December 22, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00343-CV
COMMERCE STREET CAPITAL, LLC, Appellant/Cross-Appellee
V.
DURANT BANCORP, INC., NAB ACQUISITION CORP., FIRST UNITED
BANK & TRUST COMPANY, NORTH AMERICAN BANCSHARES, INC.
AND AMERICAN BANK OF TEXAS, Appellees/Cross-Appellants
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-14703
MEMORANDUM OPINION
Before Justices Whitehill, Pedersen, III, and Reichek
Opinion by Justice Whitehill
This contract breach case arises from the sale of a bank and the nonpayment
of a broker fee. Appellant/cross-appellee Commerce Street Capital, LLC (Broker)
was the plaintiff in the trial court. Appellees/cross-appellants (the Banks) were the
defendants.
The jury’s findings generally favored Broker. Broker’s attorneys’ fees were
tried separately to the bench. The final judgment awarded Broker $5.6 million in
damages, plus attorneys’ fees and interest. Broker appealed, and the Banks cross-
appealed.
The pivotal issues and holdings are that:
• The evidence was legally and factually sufficient to support the jury’s
finding that appellee North American Bancshares, Inc. (NAB) breached its contract
with Broker, based on evidence that Broker first identified NAB’s ultimate purchaser
during the contract’s initial term, which means Broker was entitled to its fee. That
result applies under the contract’s terms, although NAB already knew the buyer.
• The evidence was legally insufficient to support the jury’s finding that
Broker suffered $1 million in “loss of credit and reputation” damages because (i) the
jury charge required proof of lost credit reputation damages and (ii) Broker adduced
no evidence of the kind of injury legally necessary to support such damages.
• We reject both sides’ attorneys’ fees challenges because (i) Broker did
not establish a presumption of reasonableness for a higher fee by conclusive or
overwhelming evidence and (ii) Texas Civil Practice and Remedies Code Chapter
38’s judicial notice provision defeat the Banks’ challenges.
Accordingly, we reverse the judgment’s loss of credit and reputation award,
modify the prejudgment interest award, and otherwise affirm.
–2–
I. BACKGROUND
A. Facts
We draw the following facts from the trial evidence viewed in the light most
favorable to the jury’s findings:
1. The Parties
Appellant Broker is an investment banking firm that, among other things,
helps people buy and sell banks.
Appellee NAB was a Texas corporation that wholly owned appellee American
Bank of Texas. Lacy Harber owned 100% of NAB, which he decided to sell. In
June 2014, NAB retained Broker to achieve that goal.
Appellee Durant Bancorp, Inc. is an Oklahoma corporation that wholly owns
appellee First United Bank & Trust Company. Greg Massey is First United Bank’s
president and CEO.
Massey’s father and Harber are long-time friends, and Durant and NAB had
a business relationship going back to the 1990s. Durant had an ongoing interest in
buying or merging with NAB going back to the 1990s as well. Additionally, Massey
met Broker’s managing director C.K. Lee in about 2013 and told Lee that Durant
would like to acquire NAB if it were ever for sale.
The fifth and final appellee is NAB Acquisition Corp., a Durant subsidiary
involved in Durant’s eventual acquisition of NAB.
–3–
2. The NAB–Broker Agreement
NAB and Broker signed their engagement letter agreement (Agreement) on
June 11, 2014.
The Agreement had a twelve month initial term with two automatic six month
extensions absent a written termination. If a sale closed within the initial term,
Broker was entitled to a “Success Fee” calculated according to a formula based on
the sale consideration. No sale closed within the Agreement’s two year initial term.
The Agreement also had a “tail” provision that is at the heart of this litigation:
Expiration Condition
Should this Engagement expire prior to the closing of a Transaction
between [NAB] and an Acquirer identified and contacted by [Broker]
during the term of this Engagement, [Broker] will be entitled to its full
Success Fee, as described above, in the event that at any time prior to
the expiration of twenty-four (24) months after the termination of this
Engagement, the Transaction is consummated.
(Emphasis added.)
3. NAB’s Marketing and Sale
After Broker and NAB signed the Agreement on June 11, 2014, several
Broker employees worked on the NAB project, including Gross, Lee, and Brian
Johnson.
On June 19, 2014, Broker and NAB personnel met to discuss the sale’s
mechanics and educate Broker personnel about NAB’s history. Broker personnel
“identified Durant Bancorp” at that meeting as a potential acquirer, but an NAB
representative indicated that NAB did not want to include Durant in the process.
–4–
Nevertheless, Durant learned that NAB was on the market, and on June 24,
2014, Massey and others met with NAB director Joe Rushing and presented an offer
to buy NAB for $351 million. Rushing forwarded the offer to Lee. NAB rejected
the offer.
In August 2014, Durant submitted a second offer for $405 million. A second
potential buyer offered $420 million. NAB didn’t accept either offer.
Nine months later, a third potential buyer offered $450 million for NAB.
Although Harber accepted the offer, the deal didn’t close, and Harber took NAB off
the market soon thereafter.
For purposes of this appeal, the Banks concede that the Agreement’s initial
term lasted the two year maximum, expiring on June 11, 2016.
In May 2016, Durant and NAB agreed to Durant buying NAB for $450
million. They signed an agreement in June 2016, and the sale closed in November
2016.
Broker didn’t negotiate the deal but learned about it before it closed. Broker
demanded its fee under the Agreement, but the Banks didn’t pay.
B. Procedural History
In November 2016, Broker sued NAB and American Bank of Texas for
contract breach. It later added the other Banks as defendants and added a quantum
meruit claim.
–5–
The case was tried to a jury, which found that NAB breached the Agreement
and the breach was not excused. The jury found that Broker’s damages were $4.6
million as the fee it was due under the Agreement and $1 million in “loss of credit
and reputation” damages.
Broker’s attorneys’ fees were tried to the bench.
The trial judge signed a judgment. Broker appealed, and appellees cross-
appealed. We questioned the judgment’s finality because it awarded “up to
$75,000.00 for any appeal to the Dallas Court of Appeals,” abated the appeal, and
remanded the case for rendition of a final judgment. The trial judge then signed a
final judgment that awarded Broker the damages that the jury found plus specific
amounts of trial and appellate attorneys’ fees.
II. ISSUES
Broker raises three issues complaining that the attorneys’ fees awards are too
low.
The Banks raise three cross-appeal issues. First, they argue that the evidence
was legally or factually insufficient to support the jury’s contract breach finding.
Second, they argue that Broker was not entitled to any recovery for loss of credit and
reputation. Third, they challenge the attorneys’ fees awards.
–6–
III. ANALYSIS
A. Cross-Appeal Issue One: Is the evidence legally or factually insufficient
to support the jury’s contract breach finding?
No. The evidence is legally and factually sufficient to support the challenged
finding because there is testimony that at an early meeting Broker identified Durant
as a prospective buyer and communicated that fact to NAB.1
1. Standard of Review
When an appellant attacks the legal sufficiency of the evidence to support an
adverse finding on an issue on which it did not have the burden of proof, it must
show that no evidence supports the finding. Guillory v. Dietrich, 598 S.W.3d 284,
293 (Tex. App.—Dallas 2020, pet. denied).
When evidence is so weak that it does no more than create a surmise or
suspicion of the matter to be proved, the evidence is no more than a scintilla and, in
legal effect, is no evidence. Id. On the other hand, evidence is legally sufficient if
it is sufficient to enable reasonable and fair-minded people to reach the verdict under
review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
In conducting our no evidence review, we view the evidence in the light most
favorable to the verdict and indulge every reasonable inference that would support
it. Id. at 822. We must credit evidence favorable to the verdict if a reasonable person
1
The Banks preserved this issue via their JNOV motion and their new trial motion.
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could, and we must disregard contrary evidence unless a reasonable person could
not. Id. at 827.
A party challenging the factual sufficiency of the evidence to support an
adverse finding on an issue on which it did not have the burden of proof must
demonstrate that the evidence supporting the jury finding is so weak or the finding
is so against the overwhelming weight of the evidence that the finding is clearly
wrong and unjust. Hoss v. Alardin, 338 S.W.3d 635, 651 (Tex. App.—Dallas 2011,
no pet.). The jury is the sole judge of witness credibility and the weight to be given
their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003).
2. Applicable Law
When we interpret a contract, our prime directive is to ascertain the parties’
intent as expressed in the instrument. URI, Inc. v. Kleberg Cty., 543 S.W.3d 755,
757 (Tex. 2018). “We give contract terms their plain, ordinary, and generally
accepted meanings unless the contract itself shows them to be used in a technical or
different sense.” Mikob Props., Inc. v. Joachim, 468 S.W.3d 587, 594–95 (Tex.
App.—Dallas 2015, pet. denied).
“The interpretation of an unambiguous contract is a question of law for the
court.” In re Marriage of I.C. & Q.C., 551 S.W.3d 119, 122 (Tex. 2018).
A contract is ambiguous if it is susceptible to more than one reasonable
interpretation. Hackberry Creek Country Club, Inc. v. Hackberry Creek Home
–8–
Owners Ass’n, 205 S.W.3d 46, 56 (Tex. App.—Dallas 2006, pet. denied). Whether
a contract is ambiguous is a question of law for the court to resolve by reviewing the
contract as whole in light of the circumstances existing at the time it was made. Id.
We may conclude a contract is ambiguous even if no party pleads ambiguity.
Id.
If the contract is ambiguous, the parties’ intent is a question of fact for the
jury. Grohman v. Kahlig, 318 S.W.3d 882, 887 (Tex. 2010) (per curiam).
“A breach of contract occurs when a party fails to perform an act it has
explicitly or impliedly promised to perform.” Gaspar v. Lawnpro, Inc., 372 S.W.3d
754, 757 (Tex. App.—Dallas 2012, no pet.).
When a dispute exists concerning a party’s failure to perform, the disputed
fact questions are submitted to the jury. Orix Capital Mkts., L.L.C. v. Wash. Mut.
Bank, 260 S.W.3d 620, 623 (Tex. App.—Dallas 2008, no pet.).
3. Sufficient evidence supports the jury’s breach finding.
The parties focus on the Agreement’s Expiration Condition in arguing about
the sufficiency of the contract breach evidence, and they especially focus on the
meaning of the term “identified” in the phrase “an Acquirer identified and contacted
by [Broker] during the term of this Engagement.” They agree that the Banks’ non-
payment of Broker’s fee breached the Agreement if Broker “identified” Durant as
–9–
an acquirer during the Agreement’s initial term (June 11, 2014 – June 11, 2016, for
purposes of this appeal).2
The Banks’ argument runs like this:
• “Identify” means to recognize or establish someone or something
as being a particular person or thing.
• Thus, under the Agreement, only one party (Broker or NAB)
could “identify” any particular potential acquirer because the
other party would not “identify” the potential acquirer by simply
repeating its name.
• And the evidence established that Broker knew NAB had
“identified” Durant as a potential acquirer before the Agreement
was executed.
Broker responds that (i) it could “identify” Durant within the Agreement’s
meaning even if NAB identified Durant first and (ii) in any event, the evidence
supported a finding that Broker identified Durant first.
We reject the Banks’ argument and generally agree with Broker’s second
argument. The common meanings of “identify,” which are consistent with the
term’s context in the Agreement, are (i) to establish or indicate who or what someone
or something is and (ii) to recognize. See, e.g., Identify, THE NEW OXFORD
AMERICAN DICTIONARY (2001). Even if we construe the Agreement to mean that
Broker did not “identify” a potential acquirer if NAB identified it first, Brian
2
Both sides seem to assume that the phrase “by [Broker]” modifies both “identified” and “contacted,”
and we assume without deciding the same. We note, however, that the phrase might be read to modify only
“contacted.” See Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580–81 (Tex. 2000) (discussing the
doctrine of last antecedent); Jery Payne, Gluing Qualifiers with a Knife: Another Look at Why a List Might
Backfire, 19 SCRIBES J. OF LEGAL WRITING 143, 145 (2020) (“The statute was ambiguous because it
contained a qualifier after a list.”).
–10–
Johnson testified that Broker identified Durant first by recognizing it as a potential
acquirer and indicating that status to NAB at a June 19, 2014 meeting. (Gross
testified similarly about a meeting involving him, Rushing, Lee, and Johnson, but he
placed that meeting in approximately May 2014.) We see no evidence that NAB
identified Durant to Broker before June 24, 2014, when NAB forwarded Durant’s
offer to Broker, much less evidence that the jury was compelled to accept over
Broker’s evidence.
Nonetheless, the Banks argue that the evidence shows that Broker determined
at or around the time of the June 19, 2014 meeting that Durant was not a potential
acquirer. We disagree. Johnson testified that NAB—not Broker—rejected Durant’s
inclusion “in the process” as a potential acquirer. Moreover, there was also evidence
that within about three weeks after the June 19 meeting NAB told Broker to work
with Durant as a potential acquirer “as a courtesy.” The jury could have found, from
this evidence, that Broker “identified” Durant as a potential acquirer within the
meaning of the Agreement’s Expiration Condition, and thus that Broker was entitled
to its full Success Fee.
The Banks also urge that the evidence conclusively showed that NAB
“recognized” Durant was a potential acquirer long before the Agreement was made.
We agree that there was evidence that Durant had an open interest in acquiring NAB
dating back to the 1990s. But the jury could reasonably conclude that NAB’s
knowledge of Durant’s interest in acquiring NAB doesn’t mean NAB “identified”
–11–
Durant—i.e., recognized Durant as an actual potential acquirer or indicated that
recognition to Broker.
4. Conclusion
The evidence is legally and factually sufficient to support the jury’s finding
that NAB breached the Agreement, and we overrule cross-appeal issue one.
B. Cross-Appeal Issue Two: Is the $1 million loss of credit and reputation
award erroneous, either as a matter of law or as a matter of evidentiary
sufficiency?3
Yes, among the reasons, because the charge required the jury to find loss to
credit reputation, and there is no evidence that NAB’s breach injured Broker’s credit
reputation as Texas law defines that term.
The jury answered $1 million in response to this part of Question 3:
What sum of money, if any, if paid now in cash, would fairly and
reasonably compensate [Broker] for its damages, if any, that resulted
from NAB’s failure to comply?
....
For loss of credit and reputation:
Damage to credit reputation that was a natural, probable, and
foreseeable consequence of NAB’s failure to comply?
Answer: $1,000,000
We agree with the Banks’ argument that the evidence supporting this award
is legally insufficient. Although the jury charge labeled this damages element “loss
of credit and reputation,” it went on to define the element as “Damage to credit
3
The Banks preserved error by objecting to the question on no evidence grounds and by JNOV motion.
–12–
reputation that was a natural, probable, and foreseeable consequence of NAB’s
failure to comply” with the Agreement. “To recover actual damages for loss of credit
reputation, a plaintiff must show that a loan was actually denied or a higher interest
rate was charged.” EMC Mortg. Corp. v. Jones, 252 S.W.3d 857, 872 (Tex. App.—
Dallas 2008, no pet.). Broker put on no evidence that it was denied a loan or charged
a higher interest rate, much less that NAB’s contract breach caused such an
occurrence. Accordingly, there is no evidence to support the damages finding or
judgment award.
Still, Broker argues that the finding was supported by testimony that NAB’s
contract breach harmed Broker’s reputation in the business community. Broker’s
president and CEO Dory Wiley testified that Broker could have lost “numerous
deals” and “heck, if we lost one deal that was half the size [it] is $2 million. That’s
how I came up with the number when you asked it. Which I think is pretty
conservative.” But this kind of evidence doesn’t address the EMC Mortgage
requirement of either a loan denial or a higher interest rate’s being charged.
Broker also invokes the principle that absent a charge objection we measure
the sufficiency of the evidence against the jury charge as given. See, e.g., id. at 869.
But we are applying that principle. The jury charge defined recoverable “loss of
credit and reputation” damages as “Damage to credit reputation that was a natural,
probable, and foreseeable consequence of NAB’s failure to comply.” (Emphasis
added.) And our EMC Mortgage decision is binding authority regarding the kind of
–13–
evidence necessary to support an award of injury to credit reputation damages. See
Chakrabarty v. Ganguly, 573 S.W.3d 413, 415 (Tex. App.—Dallas 2019, no pet.)
(en banc) (“Once a panel of this Court has spoken, subsequent panels are powerless
to contradict that decision, barring reconsideration by the Court sitting en banc or an
intervening decision by the supreme court.”).
Finally, even assuming Broker could recover general harm to reputation
damages based on the jury charge as given, its evidence still amounted to mere
speculation that NAB’s conduct had caused Broker any actual harm. Broker cites a
Texas Supreme Court defamation case for the premises that (i) lost reputation
evidence should be more than theoretical, (ii) evidence that the community was
aware of and discussed the defamatory statements is insufficient, and (iii) there must
be evidence that people believed the statement and the plaintiff’s reputation was
actually affected. Brady v. Klentzman, 515 S.W.3d 878, 887 (Tex. 2017). Broker
adduced evidence that (i) people in the business community wondered why Broker
didn’t close an NAB transaction and (ii) certain banks did not hire Broker thereafter,
but it adduced no evidence beyond speculation that it actually lost any business
because of NAB’s conduct. See id. (“Losing a job or business opportunities, of
course, is not evidence of loss of reputation unless the evidence connects it to the
defamation.”).4
4
The Banks also argue that loss of reputation damages simply aren’t recoverable in a contract breach
case. In light of our other holdings, we need not and do not address this argument.
–14–
We sustain the Banks’ second cross-appeal issue.
C. Cross-Appeal Issue Three and Broker’s Issues: Are the attorneys’ fees
awards to Broker reversibly erroneous?
No. After considering the parties’ numerous arguments, we reject them all.
1. The Evidence, Judgment, and Appellate Arguments
The trial court held a bench trial on Broker’s attorneys’ fees at which Broker’s
lead attorney was the sole witness. Broker also introduced redacted invoices into
evidence.
The corrected final judgment awarded Broker the following amounts as
attorneys’ fees:
• $473,088 “for all matters to date”;
• $10,000 “for responding to any motion for new trial filed by
Defendants”;
• “If there is an appeal to the Dallas Court of Appeals, [Broker]
shall be awarded $75,000 in fees if [Broker] prevails”5; and
• “If there is an appeal to the Texas Supreme Court, [Broker] shall
be awarded $50,000 in fees if [Broker] prevails.”
Broker argues in three issues that (i) the evidence was legally sufficient to
support a $538,260 award of trial level attorneys’ fees instead of the $473,088 that
the trial court awarded, (ii) the evidence was factually sufficient to support a
$538,260 award of trial level attorneys’ fees instead of the $473,088 that the trial
5
The original “final judgment” awarded Broker “up to $75,000 for any appeal to the Dallas Court of
Appeals,” which led to our remand and the subsequent corrected final judgment. The original judgment
also omitted conditional language from this award, but the corrected judgment contains such language.
–15–
court awarded, and (iii) the trial court erred by capping Broker’s intermediate
appellate attorneys’ fees at $75,000.
The Banks argue in one cross-appeal issue that (i) we should reverse the fee
awards if we reverse the judgment’s substance and (ii) the evidence was insufficient
to support the amounts awarded. Its second argument includes a subsidiary
argument that the trial court erred by excluding certain evidence relevant to Broker’s
recoverable attorneys’ fees.
2. Standard of Review
The evidentiary sufficiency review standard is the same for findings after jury
and bench trials. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).
We have already stated the appellate review standard applicable to the Banks’
evidentiary sufficiency challenges.
Because Broker bore the burden of proof on fees, we apply a different
appellate review standard to its sufficiency challenges. For its legal sufficiency
challenge, it must show that the evidence established as a matter of law all vital facts
supporting the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)
(per curiam). For its factual sufficiency challenge, it must show that the adverse
finding is against the great weight and preponderance of the evidence. Id. at 242.
We review a decision to admit or exclude evidence for abuse of discretion.
Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020) (per curiam).
–16–
3. The $473,088 Award for Trial Fees
We begin with Broker’s claim that the $473,088 award for past trial level
attorneys’ fees was too low and the Banks’ contention that it was too high.
a. Applicable Law
Generally, a claimant seeking its attorneys’ fees must prove with sufficient
evidence its attorneys’ reasonable hours worked and reasonable rates. See Rohrmoos
Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 501–02 (Tex. 2019).
Sufficient evidence includes at a minimum evidence of (i) the particular services
performed, (ii) who performed those services, (iii) approximately when the services
were performed, (iv) the reasonable amount of time required to perform the services,
and (v) the reasonable hourly rate for each person performing the services. Id. at
502. When supported by sufficient evidence, this lodestar calculation creates a
presumption of the reasonable and necessary attorneys’ fees that can be shifted to
the other side. Id. at 499.
Texas Civil Practice and Remedies Code Chapter 38 also supplies some rules
applicable to this case. Under Chapter 38, a party can recover its attorneys’ fees in
addition to the amount of a valid claim for written contract. TEX. CIV. PRAC. & REM.
CODE § 38.001(8). Moreover, (i) it is presumed that the usual and customary fees
for such a claim are reasonable, (ii) the presumption may be rebutted, and (iii) the
court may take judicial notice of the usual and customary fees and of the case file’s
–17–
contents without receiving further evidence in a jury case if the amount of attorneys’
fees is submitted to the court by agreement. Id. §§ 38.003–.004.
b. Broker’s Argument
Broker’s first two issues argue that it introduced conclusive or overwhelming
evidence that its trial level fees were $538,260 rather than the $473,088 that the trial
court awarded. Its legal and factual sufficiency arguments are the same: under
Rohrmoos, Broker proved that $538,260 was its presumptively reasonable fee, and
the Banks introduced no evidence to rebut the presumption. Therefore, Broker
concludes, the trial court could not reasonably award less.
We disagree with Broker’s argument. The Rohrmoos presumption applies
only if the party seeking fees provides sufficient evidence of the reasonable hours
worked and the reasonable hourly rate of those who did the work. 578 S.W.3d at
498–99. Here, we conclude that the trial court could have reasonably determined
that Broker didn’t prove the reasonable hourly rates of two attorneys who worked
on the case.
This issue principally turns on the work done by attorneys David Ritter and
Chelsea Spencer. Evidence showed that Ritter’s rate was $425, Spencer’s rate was
$375, and they billed a total of $63,172.50 in allegedly recoverable fees. But
Broker’s evidence that their rates were reasonable was negligible. Broker introduced
no evidence of their experience or special expertise, if any, or any direct evidence
that their rates were reasonable under the circumstances. At most, Broker’s attorney
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testified generally that reasonable rates in commercial litigation range from $275 for
associates to anywhere from $300 to $600 for partners. The trial court, as the fact
finder, reasonably could have concluded that Broker didn’t introduce sufficient
evidence about the reasonableness of these attorneys’ hourly rates (or work) to
justify the presumption or awarding their fees.6
Subtracting Ritter’s and Spencer’s billed time from Broker’s claimed
$538,260 leaves $475,087.50, but the trial court awarded only $473,088. This
further $2,000 difference could have any number of explanations. The Banks argued
below that Broker’s billing records were too vague to be meaningful and that Broker
didn’t adequately segregate out all fees solely attributable to the Banks’
counterclaims. We conclude that the trial court reasonably could have accepted one
of these reasons as a sufficient basis to reduce Broker’s claimed fee by another
$2,000.
We overrule Broker’s first two issues.
c. The Banks’ Arguments
The Banks make several arguments attacking the trial level attorneys’ fees
award: (i) Broker’s billing records were too heavily redacted to permit meaningful
review, (ii) Broker introduced no evidence that the services reflected in the billing
6
Although the trial judge made no findings of fact about attorneys’ fees, the judge said on the record
that he intended not to award Broker any fees for Ritter and Spencer because there wasn’t enough evidence
that their rates were reasonable.
–19–
records were reasonable and necessary, (iii) the judgment awarded $10,000 in fees
for responding to the Banks’ new trial motion, but Broker didn’t file any response
to that motion,7 (iv) Broker didn’t adequately segregate out nonrecoverable fees
incurred solely to defend against the Banks’ counterclaims, and (v) the trial court
erroneously excluded a letter sent by Broker’s attorney purportedly indicating that
half of Brokers’ attorneys’ fees were incurred solely to defend the Banks’
counterclaims.
We reject the Bank’s arguments because under Chapter 38 the trial court was
entitled to base its award on judicial notice of usual and customary fees for the case.
See TEX. CIV. PRAC. & REM. CODE §§ 38.003–.004. We will presume the trial court
took such judicial notice in determining the fee awarded, even absent other evidence
supporting the award. Logan v. Randall, No. 05-19-00043-CV, 2020 WL 948381,
at *8 (Tex. App.—Dallas Feb. 27, 2020, pet. denied) (mem. op.). The Banks have
not shown that the trial court erred in exercising its discretion to take judicial notice
of the usual and customary fees in this case. See id. at *8–9 (relying on the Chapter
38 presumption in rejecting sufficiency challenge of fee award).
We reject the Banks’ arguments regarding the trial level attorneys’ fees award.
7
A supplemental clerk’s record indicates that this argument is factually wrong.
–20–
4. The Appellate Fee Awards
Broker’s third issue complains that the trial court erred by awarding it only
$75,000 in intermediate appellate attorneys’ fees because its attorney testified that
those fees could range from $75,000 to $150,000. Broker argues that we should
remand so it can present evidence of its actual appellate fees. On the other hand, the
Banks argue that Broker’s appellate fees evidence is insufficient.
We reject both sides’ arguments. The trial judge’s ability to take judicial
notice of usual and customary fees under Chapter 38 and the presumption that such
fees are reasonable extend to appellate fees. See, e.g., Gill Sav. Ass’n v. Chair King,
Inc., 797 S.W.2d 31, 32 (Tex. 1990) (per curiam) (“The trial court’s own proceedings
together with the fact that it may take judicial notice of usual and customary fees
constitute some evidence to support the award of appellate attorney’s fees.”). We
conclude the presumption supplies sufficient evidence to support the awards of
appellate attorney’s fees in this case. See id. We are not remanding this case for
further proceedings, so we reject Broker’s request to re-try appellate attorneys’ fees.
See id.
5. Conclusion
We overrule Broker’s third issue and the Banks’ third cross-appeal issue.
IV. DISPOSITION
For the foregoing reasons, we reverse the trial court’s corrected final judgment
in part and affirm it in part.
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We reverse decretal section paragraph two, which says, “Plaintiff shall have
and recover from Defendants compensatory damages in the amount of
$1,000,000.00,” and render judgment that Broker take nothing for “compensatory
damages.”
We affirm the remainder of the judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
190343F.P05
–22–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
COMMERCE STREET CAPITAL, On Appeal from the 68th Judicial
LLC, Appellant/Cross-Appellee District Court, Dallas County, Texas
Trial Court Cause No. DC-16-14703.
No. 05-19-00343-CV V. Opinion delivered by Justice
Whitehill. Justices Pedersen, III and
DURANT BANCORP, INC., NAB Reichek participating.
ACQUISITION CORP., FIRST
UNITED BANK & TRUST
COMPANY, NORTH AMERICAN
BANCSHARES, INC. and
AMERICAN BANK OF TEXAS,
Appellees/Cross-Appellants
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED in part and REVERSED in part.
We REVERSE paragraph 2 of the trial court’s judgment’s decretal section,
which says, “Plaintiff shall have and recover from Defendants compensatory
damages in the amount of $1,000,000.00,” and RENDER judgment that
appellant/cross-appellee Commerce Street Capital, LLC take nothing for
compensatory damages.
We AFFIRM the trial court’s judgment in all other respects.
We ORDER that each party bear its own costs of this appeal.
We further ORDER that appellant/cross-appellee Commerce Street Capital,
LLC recover the judgment from Lacy Harber and Dorothy Harber as sureties on
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appellee/cross-appellant Durant Bancorp, Inc.’s supersedeas bond. After the
judgment and all costs of appellee/cross-appellant Durant Bancorp, Inc. have been
paid, the obligations of Lacy Harber and Dorothy Harber as sureties on
appellee/cross-appellant Durant Bancorp, Inc.’s supersedeas bond are
DISCHARGED.
Judgment entered December 22, 2020.
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