NUMBER 13-12-00398-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
PATSY JEAN JOHNSON A/K/A Appellant, PATRICIA M. JOHNSON,
v.
WAYNE VENTLING, Appellee.
On appeal from the 94th District Court of Nueces County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Garza and Perkes Memorandum Opinion by Justice Garza
For the third time in nine years, appellant Patricia M. Johnson1 seeks this Court’s
assistance in her ongoing efforts to enforce contractual alimony obligations agreed to by
1 Also known as Patsy Jean Johnson. her purported ex-husband, appellee Wayne Ventling. In this proceeding, Johnson
contends that the trial court erred in its award of interest, attorney’s fees, and court
costs. We affirm in part, reverse and render in part, and reverse and remand in part.
I. BACKGROUND
Johnson and Ventling cohabited from 1982 to 1995. In 1995, upon being
advised by his attorney that a common-law marriage existed, Ventling filed for divorce.
The parties agreed on the terms of a final decree, including a provision that Ventling pay
Johnson alimony of $2,500 per month for 84 months. The agreed divorce decree was
rendered on April 13, 1995.
Two years after the decree was entered, Ventling stopped making the monthly
alimony payments. Johnson moved for enforcement, and Ventling responded by
alleging that the contractual alimony obligation was void because the parties had, in
fact, never been married. Ventling contended that he had been duped by Johnson into
believing that a marriage had existed; he further claimed that the trial court retained
plenary jurisdiction to vacate the divorce decree because, since there was never any
marriage to dissolve, the April 13, 1995 judgment was interlocutory in nature. The trial
court agreed with Ventling and vacated the divorce decree, but we held that the trial
court’s ruling was void. Johnson v. Ventling, 132 S.W.3d 173, 179 (Tex. App.—Corpus
Christi 2004, no pet.) (Johnson I). We concluded that the divorce decree was “regular
on its face” and not void, and that Ventling’s challenge to the enforceability of the
decree therefore amounted to an impermissible collateral attack. Id. at 178–79.
On remand, the trial court rendered summary judgment denying Johnson’s
motion for enforcement of the alimony obligations. The trial court, noting that Johnson
2 had by then stipulated to the fact that the parties had never been married, 2 concluded
that the alimony provisions in the 1995 decree were unenforceable “because alimony,
as defined in 26 United States Code [section] 71, requires the existence of a marriage.”
Again, we reversed. Johnson v. Ventling, No. 13-09-00563-CV, 2010 Tex. App. LEXIS
8437, at *19–25 (Tex. App.—Corpus Christi Oct. 21, 2010, no pet.) (mem. op. on reh’g)
(Johnson II). We held that our conclusion in Johnson I—i.e., that the 1995 decree was
not void—was the law of the case and contradicted the judgment on appeal. Id. at *19–
20. We noted that we could locate no persuasive authority indicating that contractual
alimony is unenforceable for lack of consideration if the parties were never married. Id.
at *22. We further held that the parties’ stipulation as to the lack of a marital estate was
immaterial because “contractual alimony, if awarded, is not part of the ‘just and right’
division of the marital estate in a divorce proceeding.” Id. at *23. Additionally, we noted
that Ventling’s affirmative defenses to enforcement of the alimony provision—including
his claim that he was defrauded by Johnson into agreeing to a divorce—were
unavailable to him because such defenses may only be raised by petition for bill of
review. Id. at *22–23 n.9 (citing TEX. R. CIV. P. 329b(f)). In conclusion, we directed the
trial court to
grant Johnson’s motion for enforcement and to award her: (1) $ 142,500 in unpaid contractual alimony; (2) appropriate pre-judgment interest, see Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998) (permitting the award of pre-judgment interest based on general principles of equity); (3) reasonable attorney’s fees; and (4) costs of court.
2 Johnson stipulated to the lack of a marriage in order to avoid federal prosecution for collecting, throughout her thirteen-year cohabitation with Ventling, federal military widow’s benefits from a prior marriage. See Johnson v. Ventling, 132 S.W.3d 173, 175 (Tex. App.—Corpus Christi 2004, no pet.) (Johnson I). At a 2011 hearing, Johnson’s counsel represented to the trial court that “the law was amended . . . to make it possible for widows to marry. . . .” We express no opinion on the matter.
3 Id. at *25.
On remand, Johnson filed a motion asking the trial court to enforce our ruling in
Johnson II.3 In the motion, Johnson contended that she was “entitled to judgment on
December 19, 1997” and that, therefore, the pre- and post-judgment interest amounts
should be calculated as of that date. Accordingly, she requested that the trial court
award her the total sum of $769,746.80, representing: (1) $142,500 in damages; (2)
$3,435.62 in pre-judgment interest; (3) $366,438.48 in post-judgment interest, at 10%
compounded annually, see TEX. FIN. CODE ANN. § 304.006 (West 2006); (4)
$250,402.09 in attorney’s fees incurred since 1997, including fees for two trials and two
appeals to this Court4; and (5) $6,970.61 in court costs. In response, Ventling argued
that post-judgment interest was unavailable to Johnson because our opinion in Johnson
II permitted only the recovery of pre-judgment interest. Ventling further contended that
the amount of reasonable and necessary attorney’s fees that should be awarded to
Johnson is $15,000.
The trial court, after a hearing, awarded Johnson: (1) $142,500 in contractual
alimony; (2) $3,435.62 in pre-judgment interest; (3) $70,275 in attorney’s fees; and (4)
$20 in court costs. The judgment provided that “[p]ost-judgment interest at the rate of
5% will accrue on the total amount awarded in this Judgment, from the date of its entry.”
Johnson filed motions for reconsideration, to modify the judgment, and for findings of
3 It is noteworthy that, since we last had the opportunity to consider this case, Ventling was found by clear and convincing evidence to have fraudulently transferred assets to his mother and sister in an attempt to prevent Johnson from executing on any Texas judgment rendered against him. The finding was made by a trial court in Iowa, where Ventling resides, and was contained in a judgment rendered in response to a petition filed by Johnson seeking to void the transfers. The Iowa judgment declaring the transfers void was filed with the Texas trial court by Johnson and appears in the record before us. 4 Johnson further requested $50,000 in attorney’s fees in the event she is successful in prosecuting a third appeal in this Court and $20,000 in the event she is successful in prosecuting an appeal in the Texas Supreme Court.
4 fact and conclusions of law, none of which the trial court ruled upon. See TEX. R. CIV. P.
329b(c) (providing that a motion for new trial or to correct or modify a judgment is
overruled by operation of law after 75 days). This appeal followed.
II. DISCUSSION
By three issues on appeal, Johnson contends that the trial court’s judgment was
erroneous in its award of (1) interest on the damages award, (2) attorney’s fees, and (3)
court costs. We will address each element of the judgment in turn.
A. Judgment Interest
1. Standard of Review
We review a trial court’s award of pre-judgment interest under an abuse of
discretion standard. Morales v. Morales, 98 S.W.3d 343, 348 (Tex. App.—Corpus
Christi 2003, pet. denied); see Sw. Grain Co. v. Pilgrim’s Pride S.A. de C.V., No. 13-07-
00557-CV, 2010 Tex. App. LEXIS 5014, at *16 (Tex. App.—Corpus Christi June 28,
2010, pet. denied) (mem. op.). To determine if there was an abuse of discretion, we
must decide if the lower court acted arbitrarily, unreasonably, or without reference to
any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241–42 (Tex. 1985); Sw. Grain Co., 2010 Tex. App. LEXIS 5014, at *16.
On the other hand, post-judgment interest is regulated by statute, and as such,
its application is a question of law that we review de novo. Advanced Messaging
Wireless, Inc. v. Campus Design, Inc., 190 S.W.3d 66, 71 (Tex. App.—Amarillo 2005,
no pet.) (citing Columbia Med. Ctr. v. Bush ex rel. Bush, 122 S.W.3d 835, 865 (Tex.
App.—Fort Worth 2003, pet. denied)).
2. Applicable Law
5 Pre-judgment interest is “compensation allowed by law as additional damages for
lost use of the money due as damages during the lapse of time between the accrual of
the claim and the date of judgment.” Johnson & Higgins, 962 S.W.2d at 528 (citing
Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552 (Tex. 1985)). An award of
pre-judgment interest may be based on either an enabling statute or general principles
of equity. Id. (citing Cavnar, 696 S.W.2d at 552; Phillips Petroleum Co. v. Stahl
Petroleum Co., 569 S.W.2d 480–85 (Tex. 1978)). There is no statute enabling the
recovery of pre-judgment interest on a contract claim such as Johnson’s. Cf. TEX. FIN.
CODE ANN. § 304.102 (West 2006) (“A judgment in a wrongful death, personal injury, or
property damage case earns prejudgment interest.”). Accordingly, the common law
forms the legal basis for the award of pre-judgment interest in this case.
Under the common law, pre-judgment interest begins to accrue on the earlier of
(1) 180 days after the date a defendant receives written notice of a claim or (2) the date
suit is filed. Johnson & Higgins, 962 S.W.2d at 531. Common law pre-judgment
interest is computed as simple interest and it accrues at the rate set by statute for post-
judgment interest. Id. at 532.5 The post-judgment interest rate, in cases where no
interest rate is specified by contract, is “the prime rate as published by the Board of
Governors of the Federal Reserve System on the date of computation,” except that the
5 In Johnson & Higgins, the Texas Supreme Court modified the common law pre-judgment interest rules previously set forth in Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 554–56 (Tex. 1985), to conform with the statute governing pre-judgment interest in wrongful death, personal injury, and property damage cases. See Johnson & Higgins of Tex. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998); see also TEX. FIN. CODE ANN. ch. 304 (West 2006). The Johnson & Higgins Court held: “Our common law pre-judgment interest holding applies to all cases in which judgment is rendered on or after December 11, 1997, and to all other cases currently in the judicial process in which the issue has been preserved.” Johnson & Higgins, 962 S.W.3d at 533. The rules set forth in that case apply here because, although the judgment requiring Ventling to pay contractual alimony was rendered in 1995, the judgment granting Johnson’s motion for enforcement could have come no earlier than December 19, 1997, the date the trial court first held a hearing on the motion for enforcement.
6 rate can be no lower than 5% nor higher than 15%. TEX. FIN. CODE ANN. § 304.003
(West 2006).
3. Analysis
It is undisputed by the parties that Ventling stopped making the contractual
alimony payments in 1997, and—given our 2010 ruling that the contractual alimony
obligations are enforceable—that Ventling owed Johnson $142,500 under a provision in
the original divorce decree that provided for acceleration of alimony payments in the
event of Ventling’s default. See Johnson II, 2010 Tex. App. LEXIS 8437, at *3. In
Johnson II, we directed the trial court to award the $142,500 as well as “appropriate pre-
judgment interest.” Id. at *25. Johnson contended that she is entitled to $3,435.62 in
pre-judgment interest as well as $366,438.48 in post-judgment interest accrued from
December 19, 1997 (the date that the trial court initially denied Johnson’s original
motion for enforcement) to March 21, 2012 (the date the judgment on appeal was
rendered).
Ventling’s argument in response, made before the trial court and on appeal, is
two-fold. First, he contends that the award of pre-judgment interest on the unpaid
alimony was limited to $3,435.62 because that is the amount of pre-judgment interest
Johnson specifically requested in her motion to enforce this Court’s 2010 mandate.
Second, Ventling argues that, to the extent Johnson requested post-judgment interest in
her motion, the trial court was without authority to make that award because our
directive at the conclusion of our Johnson II opinion did not specifically authorize it. See
id.; see also Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (“When this court
remands a case and limits a subsequent trial to a particular issue, the trial court is
7 restricted to a determination of that particular issue.”). The trial court accepted
Ventling’s argument in part and awarded only $3,435.62 in pre-judgment interest on the
$142,500 damages award.6
We first note that our 2010 opinion in no way restricted the trial court’s ability or
responsibility to award post-judgment interest. In fact, even if we intended to prohibit
the trial court from making such an award, we would not have the legal authority to do
so. See TEX. FIN. CODE ANN. § 304.001 (West 2006) (“A money judgment of a court in
this state must specify the post-judgment interest rate applicable to that judgment.”);
Office of the Attorney Gen. of Tex. v. Lee, 92 S.W.3d 526, 528 (Tex. 2002) (“The [post-
judgment interest] statute is unambiguous and does not require, as a prerequisite for
accruing interest, that judgments specifically include an award of post-judgment
interest. . . . Instead, under the statute, interest accrues automatically once a court
renders its judgment.”); see also Hinojosa v. Hinojosa, No. 13-06-684-CV, 2007 Tex.
App. LEXIS 5351, at *12–13 (Tex. App.—Corpus Christi July 5, 2007, no pet.) (mem.
op.) (“Post-judgment interest . . . is automatic and required by statute, even if not
specifically awarded or narrated in the judgment.”). Next, we note that it is abundantly
clear from our opinion in Johnson II that we sustained Johnson’s issues in their entirety;
we did not “implicitly deny” Johnson’s request for post-judgment interest, as Ventling
claims. See Johnson II, 2010 Tex. App. LEXIS 8437, at *25 (“Johnson’s issues are
sustained.”). Finally, in any event, the judgment on appeal did explicitly award post-
judgment interest of 5%, and it specified that the interest would accrue beginning on the
date of entry on the judgment.
6 The trial court did not, apparently, accept Ventling’s argument that it had no authority to award post-judgment interest. As noted, its final judgment stated: “Post-judgment interest at the rate of 5% will accrue on the total amount awarded in this Judgment, from the date of its entry.”
8 With respect to pre-judgment interest, we disagree with Ventling that the trial
court could not have awarded any more than $3,435.62, the amount of pre-judgment
interest Johnson requested in her motion. Johnson’s motion specifically stated that she
believed she was entitled to judgment as of December 19, 1997, and that the pre- and
post-judgment interest amounts she requested therein were calculated as of that date.
If the post-judgment interest began accruing, as Ventling asserted, on the date the
judgment on appeal was rendered—March 21, 2012—then pre-judgment interest must
have accrued until that date. Alternatively, if Johnson is correct that post-judgment
interest should have started accruing on December 19, 1997, then the trial court’s
award of pre-judgment interest was correct but its date for the commencement of post-
judgment interest accrual was erroneous. Either way, the trial court abused its
discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (“A trial court has
no ‘discretion’ in determining what the law is or applying the law to the facts.”).
The pertinent case law supports Johnson’s position and establishes that, when
an appellate court reverses a judgment, the accrual of post-judgment interest (and,
consequently, the termination of pre-judgment interest) relates back to the date of the
original erroneous trial court judgment. See, e.g., Thornal v. Cargill, Inc., 587 S.W.2d
384, 385 (Tex. 1979) (“[W]hen the trial court’s judgment is erroneous, the judgment of
the court of civil appeals must take its place and plaintiff is entitled to interest from the
date of the erroneous judgment.”); Am. Paper Stock Co. v. Howard, 528 S.W.2d 576,
577 (Tex. 1975) (same); Long v. Castle Tex. Prod. L.P., 330 S.W.3d 749, 753–54 (Tex.
App.—Tyler 2010, pet. abated) (“[A] party that ultimately prevails is entitled to post-
judgment interest from the date the original judgment was rendered, irrespective of
9 whether the original judgment was erroneous, because that is the date upon which the
trial court should have rendered a correct judgment.”); State Dep’t of Highways & Pub.
Transp. v. Timpson, 795 S.W.2d 24, 27 (Tex. App.—Tyler 1990, writ denied) (“Interest
on the revised judgment should run from the date of the original or erroneous
judgment.”); D. C. Hall Transp., Inc. v. Hard, 355 S.W.2d 257, 260 (Tex. Civ. App.—Fort
Worth 1962, writ ref’d n.r.e.) (““Since the [1958] judgment [n.o.v.] was erroneous, and
the 1961 judgment took its place, plaintiff was entitled to interest from the date of the
erroneous judgment.”).
The original erroneous trial court judgment in this case was the trial court’s initial
denial, on December 19, 1997, of Johnson’s original motion for enforcement. The trial
court therefore erred by stating in its March 21, 2012 final judgment that “[p]ost-
judgment interest at the rate of 5% will accrue on the total amount awarded in this
Judgment, from the date of its entry.” We reverse that portion of the judgment. Instead,
the judgment should provide that post-judgment interest began to accrue as of
December 19, 1997.7 Johnson’s first issue is sustained.
B. Attorney’s Fees
1. Standard of Review and Applicable Law
Section 38.001 of the civil practice and remedies code provides that a “person
may recover reasonable attorney’s fees from an individual or corporation, in addition to
the amount of a valid claim and costs, if the claim is for . . . an oral or written contract.”
7 This accrual date does not apply to post-judgment interest on an award of conditional appellate attorney’s fees—the omission of which, we will conclude herein, was erroneous. Instead, a judgment awarding post-judgment interest on appellate attorney’s fees must provide that the interest begins to accrue “when an appeal is perfected or application is filed, whichever the case may be.” Sw. Bell Tel. Co. v. Vollmer, 805 S.W.2d 825, 834 (Tex. App.—Corpus Christi 1991, writ denied) (citing Republic Nat’l Life Ins. Co. v. Beard, 400 S.W.2d 853, 859–60 (Tex. Civ. App.—San Antonio 1966, writ ref’d n.r.e.)), disapproved on other grounds by Hous. Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668, 675 (Tex. 1999).
10 TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (West 2008). Neither party disputes that
this statute authorized the award of attorney’s fees in this case. The awarding of fees
under section 38.001 is mandatory if there is proof of the reasonableness of the fees.
Mercier v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 770, 775 (Tex. App.—Corpus Christi
2007, no pet.) (citing Great Global Assurance Co. v. Keltex Props., 904 S.W.2d 771,
776 (Tex. App.—Corpus Christi 1995, no pet.) (“A court has discretion to fix the amount
of attorney’s fees.”); Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) (noting that
statutes providing that a party “may recover” attorney’s fees are not discretionary)).
The determination of what is a reasonable fee is a question for the trier of fact.
Id. Factors to be considered include:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.
TEX. DISCIPLINARY R. PROF’L CONDUCT 1.04(b), reprinted in TEX. GOV’T CODE ANN., tit. 2,
subtit. G, app. A (West 2004); see Arthur Andersen & Co. v. Perry Equip. Corp., 945
S.W.2d 812, 818 (Tex. 1997); Mercier, 214 S.W.3d at 775–76. The court is not required
11 to receive evidence on each of these factors. Mercier, 214 S.W.3d at 776 (citing
Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 897–98
(Tex. App.—Dallas 2003, no pet)). The court can also look at the entire record, the
evidence presented on reasonableness, the amount in controversy, the common
knowledge of the participants as lawyers and judges, and the relative success of the
parties. Id.
We review the award of attorney’s fees for an abuse of discretion. Id. at 775
(citing Bocquet, 972 S.W.2d at 21; Ragsdale v. Progressive Voters League, 801 S.W.2d
880, 881 (Tex. 1990) (per curiam)). As noted, a trial court abuses its discretion when it
acts arbitrarily and unreasonably, or without reference to guiding rules and principles.
Downer, 701 S.W.2d at 241–42.
2. Evidence
At a hearing on December 9, 2011, Johnson’s lead trial and appellate attorney,
Bernard Shub, testified as to work that he did on this case over the last fifteen years.
Shub testified that Johnson is married to his wife’s father; that is, Johnson is Shub’s
stepmother-in-law. He did not have a written fee agreement with Johnson. Shub
explained: “I have not expected [Johnson] to fund the litigation, other than to pay the
appellate lawyers.[8] And I’ve funded the litigation and performed the services in
anticipation of the day when I would recover and get an award of attorney’s fees.”
8 The “appellate lawyers” referred to by Shub include Thomas Crofts, who testified that he is board-certified in civil appellate litigation and has been practicing appellate law since the mid-1970s. He was retained by Shub to assist in prosecuting Johnson’s appeals. Crofts stated that his fees, which were incorporated into the amount that was testified to by Shub, were reasonable and customary. He could not recall whether he had entered into a written fee agreement with either Johnson or Shub.
12 Prior to this case, most of Shub’s experience had been in “insurance-related
litigation” and this was one of the first cases that he took on as a solo practitioner in
1997. Shub stated that “[t]his has been a complex interstate collections case from the
beginning.” He noted that he provided trial court services in the case from 1997 to
2001, from 2007 to 2009, and from 2011 until the date of the hearing. Shub further
noted that he prosecuted two successful appeals from trial court orders,9 successfully
defended against Ventling’s motion to dismiss the second appeal, and successfully
moved this Court to rehear the second appeal. See Johnson II, 2010 Tex. App. LEXIS
8437, at *1 & *13–14 n.5. According to Shub, the total amount of fees incurred by
Johnson in this case was $265,967.09, representing: (1) $68,466 for trial court
proceedings that took place between 1997 and 200110; (2) $46,786.76 for the first
appeal, from 2001 to 2004; (3) $49,377.50 for trial court proceedings after the first
appeal and before the second appeal, from 2007 to 2009; (4) $83,171.83 for the second
appeal, from 2009 to 2011; and (5) $18,165 for trial court proceedings following
Johnson II, up until the date of the hearing.
Shub alleged that “one reason that the case was so demanding and required so
much time is Dr. Ventling’s decisions about how to litigate what began as a $142,000
9 Ventling argues that Johnson did not actually prevail in Johnson I because we dismissed that appeal for want of jurisdiction. See Johnson I, 132 S.W.3d at 179. That is incorrect. Our opinion in that appeal granted Johnson precisely the relief she was seeking—a declaration that the trial court’s 2001 judgment, which purported to invalidate the 1995 divorce decree, was void. See id. We dismissed the appeal for want of jurisdiction because “[o]ur jurisdiction extends no further than that of the court from which the appeal is taken.” Id. (citing Warner-Lambert Co. v. Mills, 117 S.W.3d 488, 490 (Tex. App.— Beaumont 2003, no pet.), rev’d on other grounds, 157 S.W.3d 424 (Tex. 2005)). But our dismissal of the appeal for want of jurisdiction does not rob our opinion—including its declaration that the 2001 judgment was void—of its binding power. It may seem counterintuitive, but under our rules, an appeal can be “successful” even if it is dismissed by the appellate court. 10 Shub testified that, in 1997, his client was awarded $2,250 in fees for work done in this case between September and December of that year, but that those fees were not included in his calculation. On cross-examination, Shub recanted this testimony and stated: “It looks like there’s billing that’s included, sir, yes, sir, so we can take the [$]2,250 out and give you a credit for that.”
13 case created the need for quite a bit of legal effort.” He alleged that “[t]his case has had
a bottomless time commitment” in part because Ventling repeatedly raised contractual
defenses to enforcement of the alimony obligations that this Court has held were not
available to him. See Johnson II, 2010 Tex. App. LEXIS 8437, at *22 (“[C]ontractual
defenses, such as failure of consideration, are now unavailable to Ventling because the
instant proceeding is a collateral attack on the 1995 decree.”); Johnson I, 132 S.W.3d at
738–39 (“We hold that Ventling’s challenge to the enforceability of the decree in this
proceeding amounted to an impermissible collateral attack.”).
Shub stated that, at the outset of the case, he had nine years of experience as
an attorney and charged either $150 or $175 per hour for his services. He became
board-certified in civil trial law and personal injury trial law in 1997 and subsequently
raised his hourly rate to $350; accordingly to Shub, he applied that rate to all services
rendered following the first appeal. Shub testified that, given the complexity of the
litigation, these rates were not unreasonable or unusual.
This was not the first time in this case that Shub testified about his fees. Shub
conceded that, in a 2001 hearing, he testified that his fees up until that point were only
$42,000. However, Shub testified in 2001 that he “had probably under[]billed by about
20 percent.” He later revised his figure for fees corresponding to that time period to
$68,466. Shub also testified in 2001 that $7,500 would be a reasonable fee for an
appeal to this Court if Johnson was the appellee and prevailed on appeal. In 2008,
Shub did not testify regarding appellate fees but did submit a proposed judgment
conditionally awarding Johnson $7,500 for successfully prosecuting an appeal in this
Court. Shub stated: “I have since learned that the cost of appellate work is much
14 higher than that.” At the 2011 hearing, he stated that $50,000 for an appeal to this
Court and $25,000 for an appeal to the Texas Supreme Court would be reasonable.
On cross-examination, Shub acknowledged that he treated Johnson differently
than most clients because she is a member of his family, and that he did not have a
written fee agreement with her. Instead, according to Shub, “I would keep track of my
time, and if I could recover attorney’s fees at the courthouse, they would be mine.”
Ventling’s lead trial counsel, William Dudley, testified that the amount Shub
requested was neither reasonable nor necessary. He stated that “if you are providing
someone legal counsel for something that’s unreasonable, you should not be entitled to
get a reasonable attorney fee for it. . . . And it is my opinion that to request a fee of
$260,000 to collect a contract for $140,000 is not reasonable.” Dudley agreed that the
case involved “novel” legal issues, but asserted that “[j]ust because something is novel
doesn’t make it difficult, and just because something is difficult doesn’t make it legally
complex.” He noted that, in any event, “these two parties created” the novel situation.
He stated that he believed a total award of $10,000 for trial work “would not be offensive
to me as an attorney who practices law.” On cross-examination, Shub produced
evidence that Dudley had himself received over $42,000 in fees from Ventling over the
same time period.
Dudley claimed that it was inappropriate and unreasonable for Shub to have
increased his hourly rate during the course of the proceedings without obtaining
Johnson’s approval.11 Dudley further stated that $350 per hour was an unreasonable
11 Shub did not state whether or not he obtained Johnson’s approval for the increased rate; however, because Shub testified that he did not “expect[ Johnson] to fund the litigation,” we find it very likely that he did not even seek Johnson’s approval.
15 rate for Shub to charge for a family law case in Nueces County. He noted that, though
Shub is board-certified in two areas, he is not board-certified in family law.
Ventling’s lead appellate counsel, Audrey Vicknair, also testified that $350 was
an unreasonable hourly rate in Nueces County. She averred that $83,000 for the
prosecution of Johnson II is unreasonable and that $50,000 for a third appeal to this
Court would be “frankly, outrageous.” She testified that appropriate and reasonable
fees would be: $25,000 for the prosecution of the Johnson II appeal; $10,000 for a third
appeal to this Court; $5,000 for filing a petition for review with the Texas Supreme
Court; $10,000 for full briefing on a petition for review; and $7,500 for arguing the merits
of a petition for review in Austin.
Ventling argues on appeal that $15,000 was a reasonable amount for Johnson’s
attorney’s fees incurred in the trial court proceedings. He further contends that Johnson
was not entitled to any appellate fees because this Court’s opinion and mandate in
Johnson II did not specifically mention “appellate attorney’s fees.” As noted, the trial
court awarded a total of $70,275 in fees and did not award conditional appellate
attorney’s fees.
We find that the trial court’s award of previously-incurred attorney’s fees was
supported by the evidence and, therefore, not an abuse of discretion. Although the
award of $70,275 was far less than the amount requested by Johnson, it was also more
than would have been justified had the trial court fully accepted the testimony of Dudley
and Vicknair. As noted, Dudley testified that $10,000 would be a reasonable fee for all
trial court services rendered since the inception of the case, and that recovery of fees
16 corresponding to the first appeal should be limited to $7,500 because that is the amount
Johnson requested at the time the services were rendered. Vicknair testified that
$25,000 would be reasonable for the prosecution of Johnson II. Thus, the evidence
supported an award of previously-incurred attorney’s fees as low as $42,500.
In any event, when reviewing matters reserved for the trial court’s discretion, we
may not substitute our own judgment for that of the trial court. Mercier, 214 S.W.3d at
775 (citing Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41–42 (Tex. 1989)). The
trial court was vested with discretion to believe or disbelieve the testimony of counsel as
it saw fit, and—though we may not have reached the same conclusion—we may not
disturb the ruling.
However, there was no testimony supporting the trial court’s failure to award
conditional prospective attorney’s fees in the event of a third appeal in this case—an
event which has now come to fruition. Ventling argues that “the law does not permit the
recovery of retroactive appellate fees to the trial court loser.” He contends that
“[b]ecause Johnson was never the trial court winner, and never the Appellee with a
judgment in her favor for contingent appellate attorney[’]s fees, this Court could not and
cannot initiate an award of appellate fees to her.” We disagree that “Johnson was never
the trial court winner.” In light of our 2004 and 2010 opinions, Johnson was, in fact, the
ultimate “winner” in this case, and the judgment on appeal reflects that. Moreover, at
the 2011 hearing, attorneys for both parties agreed that an award of conditional
prospective attorney’s fees was reasonable and warranted here.
We conclude that the trial court abused its discretion by failing to award
conditional attorney’s fees for this, the third appeal taken from the trial court in this
17 protracted case. Johnson requests that we remand the cause, once again, for a
determination of the amount to be awarded. Given the history of this case, we are
loathe to do so. Instead, the proper judgment is apparent from the record. See TEX. R.
APP. P. 43.3 (“When reversing a trial court’s judgment, the court must render the
judgment that the trial court should have rendered . . . .”). As noted, Vicknair testified
that reasonable fees for a third appeal would be: $10,000 for proceedings in this Court;
$5,000 for a petition for review in the Texas Supreme Court; $10,000 for full briefing on
a petition for review; and $7,500 for arguing the merits of a petition for review. Having
considered the voluminous record in this case, we agree that the amounts testified to by
Vicknair are reasonable and necessary, and we will render judgment accordingly.
Johnson’s second issue is sustained in part.
C. Court Costs
Texas Rule of Civil Procedure 131 provides that “[t]he successful party to a suit
shall recover of his adversary all costs incurred therein, except where otherwise
provided.” TEX. R. CIV. P. 131. We review the trial court’s award of court costs for
abuse of discretion. Moore v. Trevino, 94 S.W.3d 723, 729 (Tex. App.—San Antonio
2002, pet. denied).
At the December 9, 2011 hearing, Shub referred to a “summary” of taxable court
costs that he prepared, reflecting $5,500 paid on Johnson’s behalf in the course of
prosecuting this case since 1997. Although Shub apparently tendered the summary to
the trial court, Dudley raised multiple evidentiary objections which the trial court
sustained. Johnson notes on appeal that the statute regarding the recovery of costs,
Texas Civil Practice and Remedies Code section 31.007(a), “clearly does not require a
18 formal presentation of evidence of a party’s costs during trial.” Nolte v. Flournoy, 348
S.W.3d 262, 271 (Tex. App.—Texarkana 2011, pet. denied); see TEX. CIV. PRAC. & REM.
CODE ANN. § 31.007(a) (West 2008). Instead, “[a]ll that seems to be required is that the
successful party present . . . an itemized list of costs and fees incurred during the
lawsuit.” Nolte, 348 S.W.3d at 271. But here, no such itemized list appears in the
record. Accordingly, we have no choice but to affirm the trial court’s admittedly dubious
award of $20 in court costs. See Watkins v. Jones, 192 S.W.3d 672, 674 (Tex. App.—
Corpus Christi 2006, orig. proceeding) (“The burden lay upon [appellant] to supply this
Court with a complete record demonstrating that the trial court abused its discretion.”)
(citing Univ. of Tex. at Austin v. Hinton, 822 S.W.2d 197, 202 (Tex. App.—Austin 1991,
no writ)).
Johnson’s third issue is overruled.
III. CONCLUSION
We reverse that portion of the trial court’s judgment failing to award Johnson
conditional prospective appellate attorney’s fees. In lieu thereof, we render judgment as
follows:
In the event that this judgment is appealed to the court of appeals and Johnson is
successful in those proceedings,12 Johnson shall recover from Ventling
reasonable attorney’s fees of $10,000. Post-judgment interest at the rate of 5%,
compounded annually, shall accrue on this amount as of the date that the appeal
12 Although we are reversing the trial court’s judgment only in part, there should be no doubt that Johnson is the “successful” party in this appeal and is therefore entitled to the $10,000 in appellate fees conditioned upon success in this Court.
19 is perfected.13 See Sw. Bell Tel. Co. v. Vollmer, 805 S.W.2d 825, 834 (Tex.
App.—Corpus Christi 1991, writ denied) (citing Republic Nat’l Life Ins. Co. v.
Beard, 400 S.W.2d 853, 859–60 (Tex. Civ. App.—San Antonio 1966, writ ref’d
n.r.e.)), disapproved on other grounds by Hous. Lighting & Power Co. v. Auchan
USA, Inc., 995 S.W.2d 668, 675 (Tex. 1999).
Further, in the event that a petition for review is filed with the Texas Supreme
Court and Johnson is successful in those proceedings, Johnson shall recover
from Ventling reasonable attorney’s fees as follows: $5,000 if a petition for
review is filed; $10,000 if full briefing on a petition for review is requested; and
$7,500 if argument on the merits is requested. Post-judgment interest at the rate
of 5%, compounded annually, shall accrue on this amount as of the date the
petition for review is filed. See Vollmer, 805 S.W.2d at 834.
We additionally reverse that portion of the judgment stating that “[p]ost-judgment
interest at the rate of 5% will accrue on the total amount awarded in this Judgment, from
the date of its entry.” We remand the cause to the trial court with instructions to render
judgment in lieu thereof as follows:
With respect to that portion of the $70,275 past attorney’s fees award attributable
to prosecution of the Johnson I appeal, post-judgment interest at the rate of 5%,
compounded annually, shall accrue as of October 22, 2001, the date upon which
the Johnson I appeal was perfected. See id.
With respect to that portion of the $70,275 past attorney’s fees award attributable
to prosecution of the Johnson II appeal, post-judgment interest at the rate of 5%,
13 The record reflects that Johnson perfected the instant appeal on June 18, 2012.
20 compounded annually, shall accrue as of September 14, 2009, the date upon
which the Johnson II appeal was perfected. See id.
As to all amounts awarded in this judgment for which a post-judgment interest
accrual date has not been specified, post-judgment interest at the rate of 5%,
compounded annually, shall accrue as of December 19, 1997.
Because the trial court did not specify what portions of the $70,275 attorney’s fees
award were attributable to the Johnson I and Johnson II appeals, respectively—and
because we are unable to discern those amounts from our examination of the record—
we remand the cause to the trial court for that limited purpose. Post-judgment interest
shall then accrue on those amounts as set forth in this opinion.
The remainder of the trial court’s judgment is affirmed.
DORI CONTRERAS GARZA, Justice
Delivered and filed the 7th day of March, 2013.