Barrera, Sanchez & Associates, P.C. v. Lizette Rodriguez

• Court: Court of Appeals of Texas
• Decided: December 10, 2020
• Docket: 13-19-00246-CV
• Status: Published

Opinion

NUMBER 13-19-00246-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

BARRERA, SANCHEZ & ASSOCIATES, P.C. Appellant,

v.

LIZETTE RODRIGUEZ, Appellee.

On appeal from the County Court at Law No. 4 of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Tijerina Memorandum Opinion by Justice Hinojosa By two issues, appellant Barrera, Sanchez & Associates, P.C. (Barrera) argues

that the trial court abused its discretion when it: (1) granted appellee Lizette Rodriguez’s

motion for rehearing and (2) subsequently reduced its award of attorney’s fees. We affirm.

I. BACKGROUND

Rodriguez sought the legal services of Barrera to represent her in divorce proceedings against her former husband Jorge Alberto Rodriguez. On August 27, 2015,

Rodriguez signed a Client Services Agreement (Agreement) with Barrera wherein she

agreed to pay the law firm a retainer of $2,500 and attorney billable rates of $250 per

hour. The Agreement further provided that, “at such time and in the event it becomes

foreseeable that said initial fee will be depleted before conclusion of the matter, an

additional fee will be required to be paid by client to attorney in an amount sufficient to

conclude the matter.”

After the firm depleted its retainer, Barrera sent Rodriguez an invoice of $2,410.15

for its outstanding legal fees. Rodriguez refused to pay and instead engaged another

attorney. On May 3, 2016, Barrera filed suit against Rodriguez to recoup its outstanding

legal expenses. In its original petition, Barrera asserted causes of action under sworn

account and breach of contract. In addition to requesting $2,410.55 in outstanding fees,

Barrera sought reasonable attorney’s fees, punitive damages, pre- and post-judgment

interest, and all court costs. Rodriguez filed a verified answer and general denial. She

also asserted a counterclaim for her attorney’s fees and the affirmative defenses of failure

of consideration, accord and satisfaction, and payment.

According to Barrera, it served multiple sets of discovery on Rodriguez, such as

interrogatories and requests for disclosure, admissions, and production. The discovery

requests went unanswered. Barrera later filed separate motions for summary judgment

for each of Rodriguez’s affirmative defenses, as well as on Rodriguez’s counterclaim.

Barrera also filed multiple motions for death penalty sanctions.

On September 24, 2018, during a trial on the merits, Barrera’s attorney Keith

2 Livesay testified regarding his attorney’s fees in prosecuting this collection case. Livesay

explained that he was board certified in civil appellate law and was retained by Barrera to

collect in this matter. Livesay opined that his “reasonable attorney’s fees would be

$20,000.” He acknowledged that although his fee was disproportionate in terms of the

damages that were sought, the case had grown contentious and required additional legal

research and work. He explained that because the discovery he sent on behalf of Barrera

went unanswered, he was compelled to file numerous motions for summary judgment to

streamline the case and move it forward. Livesay argued that because Rodriguez’s

attorney, Fela Olivarez, had claimed that her fees were $10,000 in her pleadings, his fees

were $20,000 because he “probably worked double on this.” 1 Barrera did not point to any

of its attorney’s bills in the record, nor did we find any, to support the $20,000 request for

attorney’s fees.

On October 31, 2018, the trial court signed its final judgment in favor of Barrera

and awarded $2,410.55 in owed expenses, $5,000 in attorney’s fees, $1,170.78 in pre-

judgment interest, $818 in court costs, and post-judgment interest at the rate of 5 percent

per annum until the judgment was satisfied. The trial court also awarded $15,000 in

attorney’s fees in the event of an appeal to the intermediate court of appeals, and $17,500

in attorney’s fees if the Texas Supreme Court accepted petition of the case.

1 We note that our reporter’s record only includes Livesay’s testimony regarding his attorney’s fees during trial. See TEX. R. APP. P. 34.6. In its request for a partial reporter’s record, Barrera only requested “the initial direct testimony of Keith C. Livesay concerning attorney’s fees. Such transcript shall not include the testimony of any other witness, and shall not contain any other portion of the testimony of Keith C. Livesay.” See id. Accordingly, the trial transcript does not include his cross-examination by Rodriguez’s counsel Olivarez, or any other portion of the trial. Rodriguez did not file a response in this appeal, and she did not supplement the reporter’s record to include a full transcript of Livesay’s testimony.

3 Rodriguez filed a Motion for Rehearing on November 21, 2018, arguing that “there

was no itemized statement of time and costs admitted to the Court to warrant an award

of attorney’s fees and costs as stated in the Final Judgment” and that the fees were

“excessive,” “unfair,” and “unmerited.” Barrera responded that the amount of attorney’s

fees awarded was only twenty-five percent of what was requested and was too low.

On February 11, 2019, the trial court granted Rodriguez’s Motion for

Reconsideration. 2 In its amended final judgment, the court reduced the attorney’s fees

from $5,000 to $1,500 and prejudgment interest from $1,170.78 to $350. It also reduced

the amount of attorney’s fees for appeals to $10,000 for an intermediate appeal and

$10,000 for an appeal at the Texas Supreme Court. Barrera appeals.

II. MOTION FOR REHEARING

Barrera’s first issue alleges the trial court abused its discretion when it granted

Rodriguez’s motion for rehearing or new trial.

A. Standard of Review & Applicable Law

Texas Rule of Civil Procedure 320 provides in part that “new trials may be granted

and judgment set aside for good cause, on motion or on the court’s own motion on such

terms as the court shall direct. New trials may be granted when the damages are

manifestly too small or too large.” TEX. R. CIV. P. 320.

A motion for reconsideration or rehearing is equivalent to a motion for new trial. In

2 Under the Texas Rules of Civil Procedure, the motion for rehearing had already been overruled

by operation of law on January 14, 2019. See TEX. R. CIV. P. 329b. However, the trial court still had plenary power until February 14, 2019 to vacate, modify, correct, or reform its judgment. See id. R. 329b(e); Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). Accordingly, the trial court’s order granting Rodriguez’s motion for rehearing and entering an amended final judgment on February 11, 2019 was still timely. 4 re Dixon, 346 S.W.3d 906, 910 (Tex. App.—Tyler 2011, orig. proceeding). The standard

of review for a trial court’s decision on a motion for new trial or for rehearing is abuse of

discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009); Henry v.

Halliburton Energy Servs., Inc., 100 S.W.3d 505, 510 (Tex. App.—Dallas 2003, pet.

denied). A trial court abuses its discretion when its ruling is arbitrary, unreasonable or

without reference to any guiding rules or legal principles. Bocquet v. Herring, 972 S.W.2d

19, 21 (Tex. 1998); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985).

The Texas Supreme Court’s jurisprudence regarding motions for new trial has

evolved significantly in the last decade. In 2009, the high court held that trial courts have

broad discretion to grant new trials, which may be granted for “good cause” or “in the

interest of justice” but that their discretion is “not limitless.” In Re Columbia Med. Ctr. of

Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex. 2009) (orig. proceeding); see

also In re Old Am. Cty. Mut. Fire Ins. Co., No. 13-13-00644-CV, 2014 WL 1633098, at *8

(Tex. App.—Corpus Christi–Edinburg Apr. 23, 2014, no pet.) (orig. proceeding). Later that

year, the supreme court reaffirmed its holding that a trial court abuses its discretion when

it disregards a jury verdict and grants a new trial without giving its reasons for doing so.

See In re E.I. du Pont de Nemours & Co., 289 S.W.3d 861, 862 (Tex. 2009) (orig.

proceeding).

In 2012, the supreme court “reiterated the considerable discretion afforded trial

judges in ordering new trials.” In re United Scaffolding, Inc., 377 S.W.3d 685, 687 (Tex.

2012) (orig. proceeding) (citing In re Columbia Med. Ctr., 290 S.W.3d at 212). In United

5 Scaffolding, the high court held that a trial court does not abuse its discretion when

granting a new trial as long as it (1) provides a reason for which a new trial is legally

appropriate; and (2) the order is specific enough to indicate that the trial court did not

simply repeat a pro forma template but rather derived the articulated reasons from the

particular facts and circumstances of the case at hand. Id. at 688–89. The supreme court

further denounced the use of “and/or” in the list of rationales for granting a new trial where

one stated rationale was “in the interest of justice and fairness” because that practice left

open the possibility that “in the interest of justice and fairness” was the sole rationale, and

“that is never an independently sufficient reason for granting a new trial.” Id. at 689–90.

And in 2013, the Texas Supreme Court held in In re Toyota Motor Sales, U.S.A., Inc. that

“a trial court must explain with reasonable specificity why it has set aside a jury verdict

and granted a new trial.” 407 S.W.3d 746, 748 (Tex. 2013) (orig. proceeding). “Without

such an explanation, parties in the case can only speculate about why the court ostensibly

circumvented a critical constitutional right” or the right to a jury trial. Id.

In each of the foregoing cases, however, the Texas Supreme Court addressed the

sufficiency of description required for orders granting a new trial following a jury trial. None

of the cases dealt with new trial orders in non-jury cases, such as bench trials, default

judgments, or summary judgments. In her concurring opinion in In re Toyota, Justice

Lehrmann noted as follows:

Both Columbia and our subsequent opinion in [United Scaffolding] focused on transparency in the context of setting aside jury verdicts, noting the importance of ensuring that trial courts do not impermissibly substitute their judgment for that of the jury . . . . This concern, however, is not present with respect to new-trial orders that do not set aside a jury verdict, such as orders issued after a bench trial or setting aside a default judgment.

6 Accordingly, . . . the Columbia line of cases does not apply to such orders.

See 407 S.W.3d at 762–63 (Lehrmann, J., concurring) (internal citations omitted); see

also In re Cort, No. 14-14-00646-CV, 2014 WL 4416074, at *2 (Tex. App.—Houston [14th

Dist.] Sept. 9, 2014, no pet.) (orig. proceeding) (mem. op.).

B. Analysis

Here, the trial court’s order granting reconsideration of final judgment set forth as

follows:

[Barrera] presented its evidence and rested. [Rodriguez] presented her evidence and rested. The Court took judicial notice of its file, and reasonable attorney’s fees. The Court, having considered the evidence presented, along with the arguments and authorities of counsel, finds that Defendant’s Motion for Reconsideration of the Judgment is hereby GRANTED.

In the absence of further guidance from the supreme court, we decline to expand

the In re Columbia line of cases to orders granting new trials rendered after non-jury

proceedings. See City of Mission v. Cantu, 89 S.W.3d 795, 809 n. 21 (Tex. App.—Corpus

Christi–Edinburg 2002, no pet.) (“As an intermediate appellate court, we are bound to

follow the expression of the law as stated by the Texas Supreme Court.”); see also In re

Old Am. Cty. Mut. Fire Ins. Co., 2014 WL 1633098, at *11 (declining to conduct a merits-

based review to an order for new trial after a bench trial); In Re Cort, 2014 WL 4416074,

at *2 (declining to interpret a new trial order after a post-answer default judgment under

the In re Columbia line of analysis).

In the underlying case, the court’s order expressed that it “considered the evidence

presented and authorities of counsel” when granting the motion for rehearing. When a

trial court sets forth that it based a ruling on the evidence and law before it, this is not

7 “arbitrary, unreasonable or without reference to any guiding rules or legal principles.”

Bocquet, 972 S.W.2d at 21; Downer, 701 S.W.2d at 241–42. We therefore conclude the

trial court did not abuse its discretion when granting Rodriguez’s motion for rehearing.

See id. We overrule Barrera’s first issue.

III. AWARD OF ATTORNEY’S FEES

Barrera’s second issue challenged the trial court’s reduction of attorney’s fees from

$5,000 to $1,500 in the amended final judgment.

“Texas follows the American rule on attorney’s fees, which provides that, generally,

‘a party may not recover attorney’s fees unless authorized by statute or contract.’” In re

Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 809 (Tex. 2017) (orig. proceeding) (citing

Wheelabrator Air Pollution Control, Inc. v. City of San Antonio, 489 S.W.3d 448, 453 n.4

(Tex. 2016)). In this case, sections 38.001(7) and (8) of the Texas Civil Practice and

Remedies Code allow for the recovery of reasonable attorney's fees from an individual if

the claim is for a sworn account or breach of contract claim, respectively. See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 38.001(7)–(8).

The Texas Supreme Court recently addressed the recovery and calculation of

attorney’s fees. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469,

483 (Tex. 2019). In Rohrmoos, the high court held that it intended for the “lodestar

analysis to apply to any situation in which an objective calculation of reasonable hours

worked times a reasonable rate can be employed” to determine the amount of attorney’s

fees to be awarded. Id. at 497–98. The fact finder's “starting point” for calculating an

8 award of attorney’s fees is “determining the reasonable hours worked multiplied by a

reasonable hourly rate,” and the party seeking recovery of attorney’s fees bears the

burden of providing sufficient evidence on both counts. Id. at 498; El Apple I, Ltd. v.

Olivas, 370 S.W.3d 757, 760 (Tex. 2012). “This base lodestar figure should approximate

the reasonable value of legal services provided in prosecuting or defending the prevailing

party's claim through the litigation process.” Rohrmoos, 578 S.W.3d at 498. “[T]here is a

presumption that the base lodestar calculation, when supported by sufficient evidence,

reflects the reasonable and necessary attorney's fees that can be shifted to the non-

prevailing party.” Id. at 499. The “base lodestar figure accounts for most of the

relevant Arthur Andersen considerations.” Id. at 500 (citing Arthur Andersen & Co. v.

Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (setting forth eight factors a

factfinder should consider when determining the reasonableness of attorney’s fees)).

At a minimum, “sufficient evidence” to support a fee award includes evidence of

(1) particular services performed, (2) who performed those services, (3) approximately

when the services were performed, (4) the reasonable amount of time required to perform

the services, and (5) the reasonable hourly rate for each person performing such

services. Id. at 498; El Apple I, 370 S.W.3d at 764. Generally, conclusory testimony

devoid of any real substance” will not support an award of attorney’s fees. Rohrmoos

Venture, 578 S.W.3d at 501.

“Appellate courts review a trial court’s award of attorney’s fees under an abuse of

discretion standard.” Mohamed v. Ctr. for Sec. Policy, 554 S.W.3d 767, 778–79 (Tex.

App.—Dallas 2018, pet. denied). “A court abuses it discretion if it rules without reference

9 to guiding rules or principles.” Id. at 779.

Here, Livesay testified at trial that he was board certified in civil appellate law and

that the case was “very contentious and somewhat complicated.” He further explained:

We . . . filed and when we weren’t successful on discovery or getting answers through discovery, we had to file motions for summary judgment because I was trying to streamline the case. And we filed numerous motions for summary judgment. We had to go through that exercise several times. As part of the response to the motion for summary judgment, Ms. Olivarez said she was entitled to $10,000 for the defense of the case . . . [a]nd I probably worked double on this of Ms. Olivarez, so that’s the basis of my $20,000 request.

Applying the Rohrmoos factors in this analysis, we conclude that Livesay’s

testimony provides evidence of the first and second factors: the particular services he

performed as Barrera’s attorney, and who performed those services. See

578 S.W.3d at 501. The record, however, is devoid of evidence regarding the third

through fifth factors: when the services were performed, the reasonable amount of time

required to perform those services, and Livesay’s hourly rate. See id. Barrera, as the party

seeking recovery of attorney’s fees, bore the burden of providing sufficient evidence on

each of these factors. Id. at 498; El Apple I, 370 S.W.3d at 760. Based on the record

before us, it did not meet this burden.

In El Apple, the Texas Supreme Court ultimately overturned an award of attorney’s

fees for the following reasons:

[N]either attorney indicated how the 890 hours they spent in the aggregate were devoted to any particular task or category of tasks. Neither attorney presented time records or other documentary evidence. Nor did they testify based on their recollection of such records. The attorneys instead based their time estimates on generalities such as the amount of discovery in the

10 case, the number of pleadings filed, the number of witnesses questioned, and the length of the trial. While all this is relevant, it provides none of the specificity needed for the trial court to make a meaningful lodestar determination. The court could not discern from the evidence how many hours each of the tasks required and whether that time was reasonable. Without at least some indication of the time spent on various parts of the case, a court has little basis upon which to conduct a meaningful review of the fee award.

370 S.W.3d at 763; see also City of Laredo v. Montano, 415 S.W.3d 731, 736 (Tex. 2013)

(where the high court held that an attorney’s representation that he generated “thousands

and thousands of pages,” spent “a lot of time getting ready for the lawsuit,” and conducted

“a lot of legal research” was insufficient evidence under the lodestar analysis to establish

reasonable attorney’s fees); Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014) (overturning

a fee where affidavit testimony described “involved extensive discovery, several pretrial

hearings, multiple summary judgment motions, and a four and one-half day trial” but was

not accompanied by any evidence “of the time spent on specific tasks. . . .”). We find the

same lack of evidence here. Accordingly, we hold the trial court did not abuse its

discretion in lowering the attorney’s fees from $5,000 to $1,500 when Barrera failed to

provide sufficient evidence to establish its attorney’s fees.

IV. CONCLUSION

We affirm the trial court’s judgment.

LETICIA HINOJOSA Justice

Delivered and filed the 10th day of December, 2020.