BCH Development, LLC v. Lakeview Heights Addition Property Owners' Association and Barbara Wohlrabe

• Court: Texas Supreme Court
• Decided: March 26, 2018
• Docket: 05-17-01096-CV
• Status: Published

Opinion

ACCEPTED 05-17-01096-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 3/26/2018 6:39 PM LISA MATZ CLERK

ORAL ARGUMENT REQUESTED

No. 05-17-01096-CV FILED IN 5th COURT OF APPEALS DALLAS, TEXAS In The 3/26/2018 6:39:03 PM

COURT OF APPEALS LISA MATZ Clerk

FIFTH DISTRICT OF TEXAS Dallas, Texas

BCH DEVELOPMENT, LLC,

Appellant,

v.

LAKEVIEW HEIGHTS ADDITION PROPERTY OWNERS’ ASSOCIATION and BARBARA WOHLRABE,

Appellees.

On Appeal from Cause No. CC-13-05900-A In the County Court at Law No. 1 of Dallas County, Texas Honorable D’Metria Benson, Presiding Judge

REPLY BRIEF FOR APPELLANT

Michael A. Yanof Shelby Hall State Bar No. 24003215 State Bar No. 24003215 Lenahan Law, P.L.L.C. Thompson, Coe, Cousins & Irons, 2655 Villa Creek, Suite 204 L.L.P. Dallas, Texas 75234 700 North Pearl St., 25th Floor Telephone: (214)295-1008 Dallas, Texas 75201 Facsimile: (214) 295-2664 Telephone: (214) 871-8200 Email: Yanof@lenahanlaw.com Facsimile: (214) 871-8209

ATTORNEYS FOR APPELLANT FOR THE COURT’S CONVENIENCE

BCH Development, LLC was the Defendant in the trial court and is

the Appellant herein. For convenience it is referred to as “BCH” or

“Appellant.”

Lakeview Heights Addition Property Owners’ Association and

Barbara Wohlrabe were the Plaintiffs in the trial court and are the

Appellees herein. For convenience, they are referred to collectively as

“Wohlrabe,” “LHPOA,” or “Appellees.”

The Clerk’s Record and Reporter’s Record are multiple volumes and

cited with the volume number in front of the abbreviated “CR” or “RR”

designation, followed by the page number as reflected in the lower, right-

hand corner for the Clerk’s Record and the upper right-hand corner for the

Reporter’s Record. The Supplemental Clerk’s Record is also multiple

volumes and cited with a volume number in front of the abbreviated “SCR”

designation, followed by the page number as reflected in the lower, right-

hand corner for the Supplemental Clerk’s Record.

Appendix items are attached to this Brief and abbreviated as

“Apx. Tab __.”

2 TABLE OF CONTENTS

FOR THE COURT’S CONVENIENCE ........................................................... 2

TABLE OF CONTENTS ................................................................................. 3

INDEX OF AUTHORITIES ........................................................................... 6

ARGUMENT................................................................................................ 10

I. Because Restrictive Covenant 1 is ambiguous, it must be strictly construed in favor of BCH’s free and unrestricted use of the property ............................................................................... 10

A. Wohlrabe’s argument ignores the more pertinent definitions contain in the 1951 and current building codes.................................................................................13

1. BCH properly preserved its argument regarding the 1951 Dallas Building Code ................13 2. The 1951 Dallas Building Code definitions demonstrate that the restrictive covenant is susceptible to more than one reasonable interpretation ..........................................................14 B. Courts in Texas and elsewhere have held similar covenants ambiguous ....................................................... 17

1. The Dallas County District Court ruling in Dienes v. LTG Vegan Ltd. is not instructive in this case................................................................... 17 2. Courts of appeal across various jurisdictions have held similar deed restriction language ambiguous as a matter of law ................................ 18 3. The Arizona, Arkansas, Nevada, and California cases cited by Wohlrabe are not instructive and should not be considered by this Court ................................................................21

3 C. The evidence in the summary judgment record demonstrates the ambiguity of the phrase “one story in height” ......................................................................... 23

1. BCH did not waive its argument that its proposed habitable attic was not a second story ....................................................................... 23 2. Wohlrabe’s objections to Blanchard and Shekter’s affidavits are unfounded and were waived .................................................................... 24 3. Conflicting expert testimony bolsters BCH’s allegation that “one story in height” is susceptible to more than one interpretation ......... 26 4. Testimony from Wohlrabe and Wohlrabe’s expert further demonstrates the ambiguity of the phrase “one story in height” ............................ 28 D. Wohlrabe’s subjective interpretation of the Restrictive Covenant 1 renders it meaningless ............... 29

II. BCH’s affirmative defenses of impossibility, waiver, estoppel, and unclean hands precluded summary judgment ....................... 30

A. The trial court erred in granting summary judgment and denying BCH’s Motion to Reconsider because there was a fact issue on BCH’s affirmative defense of impossibility ................................................................ 30

B. The trial court erred in granting summary judgment as to BCH’s waiver defense ............................................. 32

C. The trial court erred in granting summary judgment as to BCH’s estoppel defense........................................... 34

D. The trial court erred in granting summary judgment as to BCH’s unclean hands defense ................................. 36

III. The trial court abused its discretion when it denied BCH’s Motion to Dissolve Due to Changed Circumstances ..................... 38

4 IV. The trial court erred when it granted summary judgment as to BCH’s counter claims against Wohlrabe and the other members of the LHPOA ................................................................ 39

CONCLUSION............................................................................................. 40

PRAYER ...................................................................................................... 42

CERTIFICATE OF SERVICE....................................................................... 44

CERTIFICATE OF COMPLIANCE .............................................................. 45

APPENDIX

Relator’s Petition for Writ of Mandamus (Case No. 05-16-01481-CV) Tab 1

Opinion (Case No. 05-16-01481-CV) Tab 2

5 INDEX OF AUTHORITIES

Cases

Dyegard Land P’ship v. Hoover, 39 S.W.3d 300 (Tex. App.—Fort Worth 2001, no pet.) ...................... 11

Allen v. Reed, 155 P.3d 443 (Colo. Ct. App. 2006) ................................................... 19

Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738 (Tex. 1998) ............................................................... 12

Calpine Constr. Fin. Co. v. Arizona Dep’t of Revenue, 211 P.3d 1228 (Ariz. Ct. App. 2009) ................................................... 21

Chase Manhattan Bank v. Bowles, 52 S.W.3d 871 (Tex. App.—Waco 2001, no pet.) ............................... 38

Cimarron Country Prop. Owners Ass’n v. Keen, 117 S.W.3d 509 (Tex. App.—Beaumont 2003, no pet.) ...................... 34

City of Pasadena v. Gennedy, 125 S.W.3d 687 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)............................ 11

Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587 (Tex. 1996)................................................................ 11

Crispin v. Paragon Homes, Inc., 888 S.W.2d 78 (Tex. App.—Houston [1st Dist.] 1994, writ denied) ........................... 29

Dickstein v. Williams, 571 P.2d 1169 (Nev. 1977)................................................................... 21

El Paso Nat’l Bank v. Southwest Numismatic Inv. Grp., Ltd., 548 S.W.2d 942 (Tex. Civ. App.—El Paso 1977, no writ) ................... 35

6 Fallis v. River Mountain Ranch Prop. Owners Ass’n, No. 04-09-00256-CV, 2010 WL 2679997 (Tex. App.—San Antonio July 7, 2010, no pet.) ................................. 40

Fong v. Hashimoto, 977 P.2d 878 (Haw. 2000) ................................................................. 19

Hiner v. Hoffman, 977 P.2d 878 (Haw. 1999) ............................................................ 19, 20

Holmesley v. Walk, 39 S.W.3d 463 (Ark. Ct. App. 2001) .................................................. 21

In re BCH Dev., LLC, 525 S.W.3d 920 (Tex. App.—Dallas 2017) (orig. proceeding) ........... 41

Inwood N. Homeowners Ass’n v. Harris, 736 S.W.2d 632 (Tex. 1987) ............................................................... 36

Jennings v. Bindseil, 258 S.W.3d 190 (Tex. App.—Austin 2008, no pet.) ........................... 10

Johnson v. Linton, 491 S.W.2d 189 (Tex. App.—Dallas 1973, no writ)...... 18, 19, 23, 26, 27

King v. Kugler, 17 Cal. Rptr. 504 (Cal. Ct. App. 1961)................................................. 21

Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857 (Tex. 2000) ................................................................ 34

Metius v. Julio, 342 A.2d 348 (Md. Ct. Spec. App. 1975) ............................................ 19

Morton v. Paradise Code Prop. Owners Ass’n, No. 11-09-00022-CV, 2009 WL 2841208 (Tex. App.—Eastland Sept. 3, 2009, no pet.) (mem. op.) .................. 20

Musgrave v. Brookhaven Lake Prop. Owners Ass’n, 990 S.W.2d 386 (Tex. App.—Texarkana 1999, pet. denied) .............. 35

7 Nash v. Beckett, 365 S.W.3d 131 (Tex. App.—Texarkana 2012, pet. denied) ............... 35

New Jerusalem Baptist Church, Inc. v. City of Houston, 598 S.W.2d 666 (Tex. App.—Houston 1980, no writ) ................. 32, 33

Park v. Escalera Ranch Owners’ Ass’n, Inc., 457 S.W.3d 571 (Tex. App.—Austin 2015, no pet.)............................. 37

Pebble Beach Prop. Owners’ Ass’n v. Sherer, 2 S.W.3d 283 (Tex. App.—San Antonio 1999, pet. denied) ................ 11

Pilarcik v. Emmons, 966 S.W.2d 474 (Tex.1998) .............................................. 11, 12, 22, 38

Pinnacle Peak Ranchos Prop. Owners Ass’n v. Ramioulle, No.1 CA-CV 14-0409, 2015 WL 8475067 (Ariz. Ct. App. Dec. 10, 2015) ............................................................. 21

Price v. Kravitz, 1 CA-CV 10-0889, 2012 WL 1380269 (Ariz. Ct. App., April 19, 2012) ..................................................... 21, 22

Ridgepoint Rentals, LLC v. McGrath, No. 09-16-00393-CV, 2017 WL 6062290 (Tex. App.—Beaumont Dec. 7, 2017, pet. filed) .................................. 11

S&I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849 (Tex. App.—Dallas 2011, no pet.) ............................. 25

Simon Prop. Grp. L.P. v. May Dep’t Stores Co., 943 S.W.2d 64 (Tex. App.—Corpus Christi 1997, no writ) ................. 11

Stimpson v. Plano Indep. School Dist., 743 S.W.2d 944 (Tex. App.—Dallas 1987, writ denied) ............... 34, 35

Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570 (Tex. App.—Austin 2000).......................................... 38

8 Wiese v. Heathlake Cmty Ass’n, Inc., 384 S.W.3d 395 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ................................ 11

Wilmoth v. Wilcox, 734 S.W.2d 656 (Tex. 1987) .......................................................... 10, 12

Statutes

Tex. Civ. Prac. & Rem. Code § 16.069 ......................................................... 40

Tex. Prop. Code § 202.003(a) ..................................................................... 10

9 ARGUMENT

I. Because Restrictive Covenant 1 is ambiguous, it must be strictly construed in favor of BCH’s free and unrestricted use of the property

Covenants restricting the free use of land are not favored by the

courts, but will be enforced if they are clearly worded and confined to a

lawful purpose. See, e.g., Jennings v. Bindseil, 258 S.W.3d 190, 194–95

(Tex. App.—Austin 2008, no pet.) (citing Wilmoth v. Wilcox, 734 S.W.2d

656, 657 (Tex. 1987)). When the language of a restrictive covenant is

unambiguous, it is liberally construed to give effect to its purpose and

intent. Id. at 195; Tex. Prop. Code § 202.003(a).

However, if the language is found to be ambiguous, the restrictive

covenant is construed strictly against the party seeking to enforce the

restriction, and all doubts must be resolved in favor of the free and

unrestricted use of the property. Wilmoth, 734 S.W.2d at 657.

Wohlrabe’s attempt to distinguish the Texas Supreme Court’s holding

in Wilmoth falls flat. Wohlrabe argues Wilmoth is inapplicable because it

was decided before § 202.003(a) was enacted. 1 This in incorrect—it was

decided after §202.003(a) was enacted. More importantly, the Texas

Supreme Court more recently refused to find that § 202.003(a) supplanted

Wilmoth and its analysis. See Pilarcik v. Emmons, 966 S.W.2d 474, 478–

1 See Appellees’ Br. at 22, fn 5. 10 80 (Tex.1998). This is precisely why a majority of the Texas courts of

appeals have adopted the Wilmoth holding that when a deed restriction is

ambiguous, it must be “strictly construed against the party seeking to

enforce the restriction, and all doubts must be resolved in favor of the free

and unrestricted use of the property.” Jennings, 258 S.W.3d at 195.2

Wohlrabe’s suggestion that there is no authority to support BCH’s

contention that ambiguous covenants must be strictly construed against the

party seeking to enforce them is therefore a blatant misrepresentation.

Whether a restrictive covenant is ambiguous is a question of law that

must be decided by examining the covenant as a whole in light of the

circumstances present when it was drafted. See Columbia Gas

Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.

1996). Restrictive covenants are subject to the general rules of contract

construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.1998). Like a

contract, restrictive covenants are unambiguous as a matter of law if they

can be given a definite or certain legal meaning. Id. at 478. On the other

2 Accord Dyegard Land Partnership v. Hoover, 39 S.W.3d 300, 308–09 (Tex. App.— Fort Worth 2001, no pet.); Pebble Beach Prop. Owners’ Ass’n v. Sherer, 2 S.W.3d 283, 287–88 (Tex. App.—San Antonio 1999, pet. denied); City of Pasadena v. Gennedy, 125 S.W.3d 687, 694–95 (Tex. App.—Houston [1st Dist.] 2003, pet. denied); Simon Prop. Grp. L.P. v. May Dep’t Stores Co., 943 S.W.2d 64, 71 (Tex. App.—Corpus Christi 1997, no writ); Wiese v. Heathlake Cmty Ass’n, Inc., 384 S.W.3d 395, 402–03 (Tex. App.— Houston [14th Dist.] 2012, no pet.); Ridgepoint Rentals, LLC v. McGrath, Case No. 09- 16-00393-CV, 2017 WL 6062290, at *7 (Tex. App.—Beaumont 2017, pet. filed).

11 hand, restrictive covenants that are susceptible to more than one

reasonable interpretation are ambiguous as a matter of law, even if one

interpretation appears more reasonable than another. Id.; Balandran v.

Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 (Tex. 1998). Importantly, the

words and phrases in the restrictive covenant must not be enlarged,

extended, changed, or stretched by construction. Wilmoth, 734 S.W.2d at

657–58.

The language used in Restrictive Covenant 1—“one story in height”—

is ambiguous on its face. The covenants do not prohibit attics and there is

no definition regarding what constitutes a “story” and, more specifically,

what kind of attic is not permitted. Moreover, while Restrictive Covenant 1

is a restriction based on “height,” the covenants fail entirely to provide what

constitutes excessive “height” in violation of the covenant. This not only

creates ambiguity, but by Wohlrabe’s expert’s own testimony, makes

Restrictive Covenant 1 arbitrary, as a home could be 40 feet tall (tall enough

to be a three-story home), so long as there is no usable space over the

ground floor. BCH’s contention is supported by (1) pertinent definitions of

the 1951 Dallas Building Code, (2) all relevant case law, and (3) the

evidence in the summary judgment record.

12 A. Wohlrabe’s argument ignores the more pertinent definitions contain in the 1951 and current building codes

In the summary judgment record and in Appellees’ Brief, Wohlrabe

cites the 1940, 1952, and 1956 dictionary definitions of “story” and “height”

to show their “generally accepted meaning” at the time the restrictive

covenants were created—which, generally, stated that a “story” was a set of

rooms on the same floor of a building and “height” meant a distance

upward from the ground. (4 CR 4161–66.) But contrary to Wohlrabe’s

assertion that these dictionary definitions in and of themselves give the

restrictive covenant at issue a definite and certain meaning, there were

other applicable and relevant definitions that existed at the time the

covenants were written within the 1951 Dallas Building Code.

1. BCH properly preserved its argument regarding the 1951 Dallas Building Code

Wohlrabe asserts that BCH waived its ambiguity arguments arising

from the 1951 Dallas Building Code’s definition of “attic story.” This is

inaccurate.

The 1951 Dallas Building Code was expressly addressed in Wohlrabe’s

Motion for Summary Judgment. (4 CR 4163.) Moreover, the 1951 Dallas

Building Code Provisions—including the term “attic story”—were discussed

at length in the summary judgment evidence submitted by BCH, including:

13 the affidavit of Frank Blanchard, the testimony of Wohlrabe, and the

Amended Affidavit of Mark Shekter. (3 SCR 72–102, 177–78; 6 CR 5512–

29.) All of these exhibits were cited in BCH’s summary judgment response

and amended response in support of BCH’s argument that the language in

the restrictive covenant is ambiguous. (5 CR 4637–4688; 6 CR 5371–5425.)

Accordingly, Wohlrabe’s claim that BCH’s argument that the 1951 Building

Code provisions support BCH’s assertion of ambiguity is meritless.

2. The 1951 Dallas Building Code definitions demonstrate that the restrictive covenant is susceptible to more than one reasonable interpretation

The 1951 Dallas Building Code, which was in force at the time the

restrictions were written, contained a separate definition for “story,” attic”

and “attic story.” Specifically, “story” is defined as:

That portion of a building included between the upper surface of any floor and the upper surface of the floor next above, except that the topmost story shall be that portion of a building included between the upper surface of the topmost floor and the ceiling above.

The 1951 Code defines “attic” as:

Any space situated between a roof and ceiling immediately below and not used for business, storage, or habitation.

“Attic story” is defined as:

14 Any story situated whole or partly in the roof, so designated, arranged or built as to be used for business, storage, or habitation.

(Appellant’s Br. at Apx. Tab L.) Whether or not an “attic story” was

considered a “story” is not mentioned or defined in the 1951 Code, but the

specific inclusion of “attic story” in the Code indicates that an “attic story” is

not the same as a “story” in the general sense. Moreover, most houses in the

addition do have an “attic story” under the 1951 definitions.

Most importantly, the 1951 Dallas Building Code states an “attic

story”—a finished-out attic for habitation—is not the same as “story.” The

restrictive covenants at issue do not prohibit attics from being used for

storage or habitation, nor are the terms “attic” or “attic story” mentioned in

the deed restrictions. Thus, the 1951 Code alone creates an ambiguity as to

whether habitable attics are prohibited under the restrictive covenants at

issue and whether an “attic story,” which is separately defined under the

Code, is considered a “story” within the meaning of the deed restrictions.

Wohlrabe argues that “simply because the Restrictive Covenants

don’t expressly prohibit ‘attic stories’ does not mean the creators did not

intend to prohibit them. . .” Appellees’ Br. at 31–32. However, Wohlrabe

has presented no evidence that the creators of the covenants did intend to

prohibit attic stories. And, despite the clear distinctions between “attic,”

15 “attic story,” and “story” in the very regulations which governed building in

Dallas at the time the covenants were written, the creators chose to use the

more general phrase “one story in height.” Moreover, rather than

“nullifying” Restrictive Covenant 1 as Wohlrabe claims, BCH’s

interpretation simply provides an alternative interpretation—that

Restrictive Covenant 1 does not prohibit certain types of attics. This creates

unmistakable ambiguity, which mandates that the restrictive covenant be

strictly construed toward the free and unrestricted use of the property.

Wohlrabe belabors the point that the only relevant sources for

determining the deed restrictions are those that were in existence at the

time the covenants were drafted (such as the 1951 Dallas Building Code).

Yet it is still instructive to compare the 1951 provisions to the present day

IRC provisions, for doing so highlights the trend of Dallas building codes to

draw a distinction between a traditional “story” and an “attic/habitable

attic/attic story.” Notably, the 2012 and 2015 IRCs “habitable attic”

definition is very similar to the definition of “attic story” contained in the

1951 version of the Dallas Building Code, which governed residential

construction in Dallas at the inception of the Addition’s deed restrictions.

In fact, the only difference between the IRC definition of “habitable attic”

and the 1951 Dallas Building Code definition of “attic story” is that under

16 the modern day definition of “habitable attic,” the exact same attic space

would have been defined as an “attic story” in 1951 and must now comply

with certain safety requirements, whether the attic is finished or

unfinished. Further, a “habitable attic” under the 2012 IRC definitions is,

by the IRC’s exact words, “not considered a story.”

Wohlrabe’s argument that the Restrictive Covenant 1 has a “definite

legal meaning” rests on dictionary definitions, rather than the more

pertinent definitions set out in the 1951 Dallas Building Code and IRC,

which reveal there is more than one reasonable interpretation of the phrase

“one story in height.” This creates ambiguity which compels this Court to

strictly construe the restrictive covenants against Wohlrabe and resolve the

ambiguity favorably toward BCH’s free and unrestricted use of the

property.

B. Courts in Texas and elsewhere have held similar covenants ambiguous

1. The Dallas County District Court ruling in Dienes v. LTG Vegan Ltd. is not instructive in this case

Wohlrabe cites the 191st District Court’s Findings of Fact and

Conclusions of Law in the 2005 case Dienes v. LTG Vegan Ltd. (Cause No.

04-10084-J) in support of her argument that the phrase “one story in

height” is not ambiguous as a matter of law. Appellee’s Br. at 28. Notably,

17 these findings of fact and conclusions of law do not discuss whether there is

language in those restrictions that define the “height” or whether there was

an active ACC in that case. Further, there is no record or opinion from a

court of appeals discussing the merits of the case, as the case was never

appealed. Accordingly, the 191st District Court’s findings of fact and

conclusions of law are not legal authority and should not be considered by

this Court.

2. Courts of appeal across various jurisdictions have held similar deed restriction language ambiguous as a matter of law

In Johnson v. Linton, 491 S.W.2d 189 (Tex. App.—Dallas 1973, no

writ), this Court reviewed a deed restriction which prohibited the building

of houses that exceeded “one and one-half (1-1/2) story in height.” Id. at

191. In that case, the homeowner sought to add two rooms and a bath above

his garage, which the homeowner claimed constituted a “one-half story.” Id.

The Court reasoned that because it could not say that “the restrictive

recitations are so clear that but one reasonable meaning for each respective

phrase ha[d] clearly emerged,” the restriction was ambiguous and must be

construed against the party seeking its enforcement. Id. at 197.

Similar restrictions have been interpreted by many other courts in

varying jurisdictions to be ambiguous—several of which have cited the

18 Johnson case out of this Court. See Allen v. Reed, 155 P.3d 443, 445-46

(Colo. Ct. App. 2006) (citing Johnson in holding deed restriction that

height of dwelling house “shall not exceed one story in height, measured

from finished grade” was ambiguous and unenforceable); Fong v.

Hashimoto, 977 P.2d 878, 880-83 (Haw. 2000) (holding that the term “one

story in height” in the deed restriction was ambiguous and unenforceable);

Hiner v. Hoffman, 977 P.2d 878, 880-83 (Haw. 1999) (citing Johnson, 491

S.W.2d at 196-97) (“The indeterminate “two story” language, in our view, is

not only ineffectual to achieve that purpose but ambiguous when applied to

the case at bar.”); Metius v. Julio, 342 A.2d 348 (Md. Ct. Spec. App. 1975)

(“The equitable height restriction does not limit the buildings to ‘three

stories' but rather to ‘three stories in height.’ We are persuaded that the

meaning of the express ‘three stories in height’ used in this particular

equitable restriction, is ambiguous.”). These courts frequently emphasize

that a building may have two “stories” and yet not exceed one story in

height. Hiner, 977 P.2d at 882; Metius, 342 A.2d at 354. Conversely, an

interpretation that a restriction limiting a structure to one story in height

prohibited any home with any living space on the second “story” would

both render the phrase “in height” superfluous, Allen, 155 P.3d at 445, and

lead to absurd results, such as:

19 1. a 35-foot-high one-story house would comply with the restriction but a 20-foot-high two story house wouldn’t, Allen, 155 P.3d at 445-46; Hiner, 977 P.2d at 881-82; and

2. one home could violate the restriction merely because there is usable space on the two floors while another home, identical from the outside, would not violate the restriction if there were no useable second floor. Allen, 155 P.3d at 445-46.3

Indeed, for this latter reason, the Eastland Court of Appeals has held

that homes with finished portions of the attic are one-story homes as a

matter of law, because on the outside they appeared to be one-story homes.

Morton v. Paradise Code Prop. Owners Ass’n, No. 11-09-00022-CV, 2009

WL 2841208, at *5 (Tex. App.—Eastland Sept. 3, 2009, no pet.) (mem. op.).

In Morton, the court reasoned that the obvious purpose of the one-story

limitation was to protect the view of other property owners within the

subdivision. Id. Thus, the homes complied with the deed restriction

because the homes appeared to be one-story homes when viewed from the

exterior despite a finished attic space. Id.

3 Wohlrabe argues that this case law is inapplicable because the courts strictly construed the restrictions in contravention to § 202.003(a) and (2) none of the plaintiffs in those cases made the same arguments as Wohlrabe. Appellees’ Br. at 36–37. This attempt to distinguish these cases falls flat. As outlined in greater detail above, Texas courts across the board strictly construe covenants that are ambiguous. 20 3. The Arizona, Arkansas, Nevada, and California cases cited by Wohlrabe are not instructive and should not be considered by this Court

Wohlrabe’s reliance on cases from Arizona, Arkansas, California, and

Nevada is improper. Appellees’ Br. at 26–27 (citing Price v. Kravitz, 1 CA-

CV 10-0889, 2012 WL 1380269 (Ariz. Ct. App., April 19, 2012); Pinnacle

Peak Ranchos Prop. Owners Ass’n v. Ramioulle, 2015 WL 8475067, at *2-3

(Ariz. Ct. App. Dec. 10, 2015); King v. Kugler, 17 Cal. Rptr. 504 (Cal. Ct.

App. 1961); Dickstein v. Williams, 571 P.2d 1169, 1170-71 (Nev. 1977);

Holmesley v. Walk, 39 S.W.3d 463, 465-467 (Ark. Ct. App. 2001)).

First, Wohlrabe cited to Price v. Kravitz—a memorandum decision

from the Arizona Court of Appeals. Appellees’ Br. at 26–27; See Calpine

Constr. Fin. Co. v. Arizona Dep’t of Revenue, 211 P.3d 1228, 1233 (Ariz. Ct.

App. 2009) (“The general rule for memorandum decisions is that they

“shall not be regarded as precedent nor cited in any court.”). Because Price

is a memorandum opinion that does not refer to or cite relevant Texas law,

it should have no bearing on this Court’s analysis of this case. Moreover,

Price did not hold that the phrase “not to exceed one story in height” was

unambiguous. Instead, it held that the phrase “one-story in height was

“sufficiently clear to permit enforcement” under Arizona’s rules of

construction, which explicitly reject the rule that ambiguous deed

21 restrictions are construed in favor of the free use of the land. Price, 2012

WL 1380269, at *2. In Texas, ambiguous deed restriction are construed

strictly against the party seeking to enforce them and in favor of the free

and unrestricted use of the land. See e.g., See Pilarcik, 966 S.W.2d at 478–

480.

The Arkansas case similarly does not support Wohlrabe’s position

because the deed restriction in that case stated, “No two-story dwelling

shall be constructed” on the property. Holmesley, 39 S.W.3d at 465. The

term “two-story dwelling” is much less ambiguous than the deed restriction

at issue in this case, which prohibits the building of a home more than

“one-story in height.” Id.

Finally, even though the California and Nevada cases cited by

Wohlrabe might indicate some disharmony over the issue of deed

restrictions like the one at issue in this case, there are two significant facts

regarding this split of authorities. First, the cases supporting Wohlrabe’s

position are older, while the more recent cases that were rendered post

Johnson v. Linton support BCH’s position. Second, and more importantly,

this Court has held that a similar phrase—“not to exceed one-half story in

height”—to be ambiguous as a matter of law. Johnson, 491 S.W.2d at 106–

22 197. This Court should reaffirm its holding in Johnson and hold that the

deed restriction at issue in this case is ambiguous as a matter of law.

C. The evidence in the summary judgment record demonstrates the ambiguity of the phrase “one story in height”

1. BCH did not waive its argument that its proposed habitable attic was not a second story

BCH has argued vehemently from the very beginning that the home it

wishes to construct did not violate the covenants because the home was not

a two-story home, nor did it exceed one-story in height. However,

Wohlrabe contends that BCH waived its argument that its proposed

building plans did not depict a second story under the commonly accepted

meaning of the term in the 1950s, when the covenants were promulgated.

Appellees’ Br. at 41. This is wrong. While BCH did argue that the 2012 IRC

definitions were instructive, BCH did not waive its right to also argue that—

even under the applicable definitions from the 1950s—BCH’s proposed

home was not a two-story structure. Nor did it exceed one story in height.

Rather, BCH attached and cited to evidence, including affidavits and

testimony from Wohlrabe, Blanchard, Shekter, and Karl Evans in which the

1950s definitions were specifically discussed. (3 SCR 72–102, 139–152,

177–78; 5 CR 4637–4688; 6 CR 5512–29, 5371–5425.) Moreover,

Wohlrabe discussed these original definitions and Dallas Building Code

23 provisions in her own Motion for Summary Judgment. (4 CR 4163.) She

cannot now claim that these provisions were not part of the arguments at

summary judgment and preclude BCH’s citation of them in this Court.

Accordingly, BCH has not waived the argument that its building plans do

not violate Restrictive Covenant 1 under the definitions in the 1951 Dallas

Building Code.

2. Wohlrabe’s objections to Blanchard and Shekter’s affidavits are unfounded and were waived

While Wohlrabe argues that Blanchard’s testimony via his Amended

Affidavit was inadmissible because his Amended Affidavit was unsigned

and unsworn, Blanchard’s original Affidavit (attached to BCH’s preliminary

response to Wohlrabe’s Motion for Summary Judgment) was signed and

sworn. (3 SCR 72–102.) Blanchard’s original Affidavit and Amended

Affidavit contain most of the same testimony, and Blanchard’s original

Affidavit was incorporated by reference into BCH’s amended summary

judgment response. (Id.; 6 CR 5423, 5426–5449.) Accordingly, Wohlrabe’s

objection on this ground is unfounded and irrelevant to the determination

of this appeal.

Reasserting the arguments made in her written objection filed with

the trial court, Wohlrabe further argues that the affidavits of Blanchard and

Shekter were inadmissible because they were conclusory, irrelevant, and

24 not credible. Appellees’ Br. at 43–46; (6 CR 5700–5737.) However, for a

ruling on an objection to summary judgment evidence to be effective, the

ruling must be reduced to writing, signed by the trial court, and entered of

record. S&I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 855 (Tex. App.—

Dallas 2011, no pet.). If the objecting party does not obtain a ruling on its

objections, objections as to the form of the affidavit are waived and the

objected-to material is in evidence. Id. (stating that the following objections

constitute objections as to form: that affidavit is hearsay; that affidavit of

interested witness is not clear, positive, credible, and free from

contradiction). Only objections that an affidavit is conclusory may be raised

for the first time on appeal. Id. Affidavits are conclusory if they do not

provide the underlying facts to support the conclusion. Id. at 855–86.

Wohlrabe did not obtain a written ruling from the trial court on her

objections to Blanchard and Shekter’s affidavits. As most of Wohlrabe’s

objections stem from her belief that the affidavits are not credible—or that

the affidavits simply provide testimony she disagrees with—the majority of

Wohlrabe’s objections were waived by her failure to obtain a written ruling

in the trial court. To the extent that Wohlrabe argues the affidavits were

conclusory, even a cursory review of the affidavits demonstrates they were

not. Blanchard’s affidavit is over 25 pages long and provides a detailed

25 description of the facts and reasoning supporting his ultimate conclusion.

(3 SCR 72–102.) Shekter’s affidavit is similarly thorough. (6 CR 5512–

5529.) This is a far cry from what is sufficient to label an affidavit

conclusory. Accordingly, Wohlrabe’s objections to Blanchard and Shekter’s

affidavits are meritless and have been waived for purposes of this appeal.

3. Conflicting expert testimony bolsters BCH’s allegation that “one story in height” is susceptible to more than one interpretation

In coming to its holding in Johnson v. Linton—that the deed

restriction prohibiting homes that exceeded “one and one-half (1-1/2) story

in height” was ambiguous—this Court reasoned that the “vagueness and

uncertainty of the phrases is classically illustrated by the testimony of the

various experts” because each “expert in the field of architectural design

had his own idea and conception of what was meant by the phrases utilized

in the restrictions.” Id. at 197. Here, just as in Johnson, experts for both

sides put forth thoughtful, well-supported opinions regarding whether, in

their opinion, a habitable attic constituted a “story” within the meaning of

the restrictive covenants.

BCH’s experts opined that the habitable attic depicted in BCH’s

building plans did not constitute a second “story” within the meaning of the

restrictions. (3 SCR 72–102; 6 CR 5426-5449, 5512-5529.) Both experts

26 stated that they believed BCH’s building plans were in full compliance with

the restrictive covenants. (6 CR 5441-5442, 5528.) Specifically, Blanchard

testified that the home BCH intends to build would have no exterior second

floor plate lines, the entire roof assembly of the home sits on the ground

floor plate line, and the home lacked any architecturally defined features

that would be required for a home to be architecturally defined as a two-

story home. (6 CR 5430.) Both Blanchard and Shekter testified that the

inclusion of the phrase “ground floor area” within restriction #2 indicates

that the drafters did not intend to prohibit a two-story home or a home with

a habitable attic. (6 CR 5437, 5524-5525.) Conversely, Wohlrabe’s expert

testified that they believed that a habitable attic created a home that is

more than “one-story in height” within the meaning of the covenants and

that BCH’s proposed building plans were thus in violation. (2 RR 25-26;

143.)

Thus, the experts on both sides of this case had their own ideas and

conceptions regarding what they believed was meant by the phrase “one-

story in height.” (Id.); cf. Johnson, 491 S.W.2d at 197 (“[C]an we say that

the questioned phrases contained in the restrictive recitations are so clear

that but one reasonable meaning for each respective phrase has clearly

emerged? The mere reading of the phrases themselves and the reading of

27 the testimony of the experts who attempted to define the same answers the

question in the negative.”). This split in expert opinions classically

illustrates the ambiguity of the deed restrictions.

4. Testimony from Wohlrabe and Wohlrabe’s expert further demonstrates the ambiguity of the phrase “one story in height”

The ambiguity of the phrase “not to exceed one story in height” in this

case is manifest by Wohlrabe’s admission at the November 25, 2013

temporary injunction hearing that if BCH did not finish out the attic, and

just left the exact same size attic unfinished, it would not be a violation of

the restrictive covenant. (3 SCR 160–61; 166.) The ambiguity is further

demonstrated in the testimony that was provided by Wohlrabe’s expert,

Bob Brendle, who testified at the November 7, 2013 temporary injunction

hearing that if the area in dispute was totally unfinished, but the design and

height were otherwise the same, the house would only be one-story and the

restrictive covenants would not be violated. (2 RR 183-184.) Brendle also

testified similarly in his deposition—an excerpt of which was attached to

BCH’s summary judgment response—that even a building that was 40 feet

high could be in compliance with the restrictions if it was only one story. (3

SCR 234.) The obvious purpose of the “not to exceed one story in height”

restriction is to restrict the height of the exterior of the homes within the

28 Addition; the restrictions were not intended to regulate how homeowners

use the interior of their homes.

Accordingly, the meaning of the term “one story in height,” without

further definition or specification, is ambiguous. Because it is ambiguous,

this Court must interpret the restrictive covenants in BCH’s favor, as

ambiguity must be resolved in favor of the unrestricted use of the premises.

Under BCH’s interpretation of the restrictive language, BCH’s building

plans did not violate the restrictive covenants because the phrase “one story

in height” does not restrict a homeowner from building a home with a

finished/habitable attic space or a second story. Accordingly, Wohlrabe was

not entitled to summary judgment or a permanent injunction.

D. Wohlrabe’s subjective interpretation of the Restrictive Covenant 1 renders it meaningless

Wherever possible, a covenant should be construed to give effect to all

of the provisions and to avoid rendering any provision meaningless. Crispin

v. Paragon Homes, Inc., 888 S.W.2d 78, 82 (Tex. App.—Houston [1st Dist.]

1994, writ denied). Wohlrabe argues that BCH’s interpretation of

Restrictive Covenant 1 as a “height” restriction, rather than a “story”

restriction, is not reasonable because it is “nonsensical to say that the

creators intended to limit the “height” of the homes but then neglected to

provide a numerical height limitation.” Appellees’ Br. at 37. This is illogical.

29 Wohlrabe’s argument that the only reasonable interpretation of the

covenant as a “story restriction” renders the covenant’s “in height” language

superfluous and meaningless. This is in direct contradiction to the clear

rule prohibiting an interpretation that renders language in covenants

meaningless.

The fact that the restriction could reasonably be interpreted as either

a “story” or “height” restriction leads to the only logical conclusion—that

the language in Restrictive Covenant 1 is ambiguous because it is subject to

more than one reasonable interpretation. Consequently, the covenant must

be interpreted strictly against Wohlrabe and in favor of the free and

unrestricted use of the land. That is, the covenants must be construed in

line with BCH’s interpretation—the practical result of which being that

BCH’s proposed building plans are deemed not in violation of Restrictive

Covenant 1.

II. BCH’s affirmative defenses of impossibility, waiver, estoppel, and unclean hands precluded summary judgment

A. The trial court erred in granting summary judgment and denying BCH’s Motion to Reconsider because there was a fact issue on BCH’s affirmative defense of impossibility

The restrictive covenants at issue charge the ACC with the

responsibility of approving and disapproving building plans for homes

30 within the Addition. Part of the criteria considered by the ACC must be

whether the plan complied with the restrictive covenants.

In this case, the ACC is clearly necessary for performance of BCH’s

obligations under Paragraphs 8-10 of the deed restrictions. Specifically,

paragraphs 8, 9, and 10 of the deed restrictions provide that the ACC is the

only entity that has the power to approve or disapprove of “constriction

plans and specifications” based on “quality of workmanship and materials,

harmony of external design with existing structures, and as to the location

with respect to topography and finish grade elevation.” (14 RR 304-305.)

Further, in the event the ACC, or its designated representative, fails to

approve or disapprove within 30 days after plans and specification have

been submitted to it, or in any event, if no suit to enjoin the construction

has been commenced prior to the completion thereof, approval will not be

required and the covenants shall be deemed to have been fully complied

with. (Id.) There is nothing in the deed restrictions that give any of the

homeowners or the LHPOA the right to bypass or usurp the ACC’s authority

to approve or disapprove of “construction plans and specifications.”

All members of the ACC are deceased and, at the time BCH completed

its building plans, there was no ACC in existence for BCH to submit its

plans to, as required by the restrictive covenants. (8 CR 6662-6664.) That

31 is, it was impossible for BCH to obtain approval, as required by the deed

restrictions. Accordingly, the doctrine of impossibility excused BCH from

obtaining approval. Further, even if it were possible for BCH to get

approval, the plans were deemed approved because they were sent to the

listed members of the ACC and no response was received.

Because the restrictive covenants were impossible to comply with, the

trial court erred in granting summary judgment and denying BCH’s Motion

to Reconsider.

B. The trial court erred in granting summary judgment as to BCH’s waiver defense

In order to establish the affirmative defense of waiver in a deed

restriction case, the nonconforming user must prove that violations then-

existing are so great as to lead the mind of an “average man” to reasonably

conclude that the restriction in question has been abandoned and its

enforcement waived. New Jerusalem Baptist Church, Inc. v. City of

Houston, 598 S.W.2d 666, 669 (Tex. App.—Houston 1980, no writ). Among

the factors to be considered by the “average man” are the number, nature,

and severity of the then-existing violations, any prior acts of enforcement of

the restriction, and whether it is still possible to realize to a substantial

degree the benefits intended through the covenant. Id.

32 The majority of Wohlrabe’s argument as to BCH’s waiver defense is

that only one other house in the Addition violated Restrictive Covenant 1’s

prohibition on two-story homes. However, the ratio of violations to lots

within a subdivision is only one factor courts consider when determining

whether the then-existing violations were so great, such as to support

waiver. New Jerusalem Baptist Church, Inc., 598 S.W.2d at 669 (listing

other factors such as nature and severity of then-existing violations). Even a

single violation can constitute waiver if it is sufficiently severe as to lead an

“average man” to reasonable conclude that the restriction in question has

been abandoned. See generally id.

There is a full two-story home at 6144 Monticello—which is the lot

that sits directly next to the lot owned by BCH at 6148 Monticello, where

the proposed home was to be built. (3 RR 109–110; 5 CR 4218.) The home

at 6144 Monticello measures 30.90 feet in height, which is 5 ½ feet higher

than the home BCH proposed to build on the neighboring lot. (6 CR 5426–

5439, 5490–5494, 5512–5529.) In further contrast to the home proposed in

BCH’s building plans, the two-story house at 6144 Monticello has gabled

windows on the front of the house in the roof, a second story exterior plate

line, and second story windows that are clearly seen from the exterior of the

home. (6 CR 5426–5439, 5490–5494, 5512–5529.)

33 The second floor addition and second floor plate lines at 6144

Monticello are far more significant and substantial than the alleged breach

presented by BCH’s building plans. That is, the impact of the full second

story at 6144 Monticello on the neighborhood was far greater than any

impact that could result from BCH’s proposed building plans. On this basis

alone, waiver is supported.

C. The trial court erred in granting summary judgment as to BCH’s estoppel defense

Quasi-estoppel precludes a party from asserting, to another’s

disadvantage, a right inconsistent with a position previously taken.

Cimarron Country Prop. Owners Ass’n v. Keen, 117 S.W.3d 509, 511 (Tex.

App.—Beaumont 2003, no pet.). The doctrine applies when it would be

unconscionable to allow a party to maintain a position inconsistent with

one to which the party acquiesced, or from which the party accepted a

benefit. Id. (citing Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d

857, 864 (Tex. 2000)). Stated another way, the doctrine of quasi-estoppel

precludes a party, with knowledge of the facts, from taking a position

inconsistent with his or her former position to the disadvantage of another.

See Stimpson v. Plano Indep. School Dist., 743 S.W.2d 944, 946 (Tex.

App.—Dallas 1987, writ denied). Unlike equitable estoppel, quasi-estoppel

requires no showing of a false representation or detrimental reliance. See

34 Stimpson, 743 S.W.2d at 946; El Paso Nat’l Bank v. Southwest Numismatic

Inv. Grp., Ltd., 548 S.W.2d 942, 948 (Tex. Civ. App.—El Paso 1977, no

writ.).

Wohlrabe claims because there is no evidence that any of the

homeowners “knew” about the restrictions, the elements of quasi-estoppel

cannot be met. However, actual knowledge is not required for a finding of

estoppel. Rather, the knowledge requirement is met by a showing of

constructive knowledge. See e.g., Nash v. Beckett, 365 S.W.3d 131, 143–44

(Tex. App.—Texarkana 2012, pet. denied). Thus, because subsequent

grantees are charged with constructive knowledge of restrictive covenants

on their properties when those covenants are on file in the county deed

records, the property owners in the Addition here had constructive

knowledge of Restrictive Covenant 1. See Musgrave v. Brookhaven Lake

Property Owners Ass’n, 990 S.W.2d 386 (Tex. App.—Texarkana 1999, pet.

denied).

The homeowners within the Addition permitted violations of the

restrictive covenants to occur for many years without any objection and

most, if not all, of the homeowners admittedly violated one or more deed

restrictions Wohlrabe seeks to enforce. (6 CR 5442-5446; 4 RR 14.)

Moreover, most of the homeowners that comprise LHPOA lived in the

35 Addition when, for example, the Stillos remodeled their home in violation

of the deed restrictions and when the house at 6144 Monticello was

remodeled into a full two-story home measuring 30.90 feet in height. (2 RR

109-110; 6 RR 5426-5449.) This is a prime example of the type of prior

acquiescence contemplated by the doctrine of quasi-estoppel. Accordingly,

the trial court erred in granting summary judgment as to BCH’s estoppel

defense.

D. The trial court erred in granting summary judgment as to BCH’s unclean hands defense

Wohlrabe’s argument that BCH is preclude from asserting unclean

hands because the homeowners did not own the properties at the time the

violations occurred is inapposite. Because real covenants run with the land,

it is of no consequence to the application of the unclean hands defense that

a homeowner did not own the property in question at the time the violation

of the deed restrictions occurred. See Inwood N. Homeowners Ass’n v.

Harris, 736 S.W.2d 632, 635 (Tex. 1987). Rather, because deed restrictions

run with the land, they are enforceable against a homeowner at any time,

regardless of whether that homeowner owned the property at the time the

violation occurred. Id.; see also Fallis v. River Mountain Ranch Property

Owners Ass’n. Inc., No. 04-09-00256-CV, 2010 WL 2679997 (Tex. App.—

San Antonio July 7, 2010, no pet.) (mem. op.) (reasoning that because the

36 easement at issue was similar to a restrictive covenant, it was enforceable at

any time, regardless of whether the homeowner owned the property when

the violation occurred). Thus, if a party’s culpability for a deed restriction

violation is not dependent on the party’s possession of the property at the

time the violation occurred, a party cannot avoid the application of the

unclean hands doctrine by acquiring a property after a violation occurs.

This long-established rule is actually reflected in the deed restrictions in

this case, which state that “[i]f the parties hereto, or any of them, or their

heirs or assigns shall violate or attempt to violate any of the covenants

herein, it shall be lawful for any other person or persons owning real

property as hereinabove described to prosecute any proceedings at law or in

equity against the person. . .” (14 RR 304.)

Several of the members comprising LHPOA have admittedly violated

the deed restrictions at issue. (6 CR 5442-5446; 14 RR 97-106.) In fact,

Wohlrabe herself testified at the November 25, 2013 hearing that some of

the wood siding on the back of her house and garage set-back was in

violation of the restrictive covenants. (4 RR 14.) Thus, the doctrine of

unclean hands applies, as “[LHPOA] is guilty of the same actions of which

[BCH] is accused.” See Park v. Escalera Ranch Owners’ Ass’n, Inc., 457

S.W.3d 571, 597 (Tex. App.—Austin 2015, no pet.).

37 III. The trial court abused its discretion when it denied BCH’s Motion to Dissolve Due to Changed Circumstances

A party may move to modify or dissolve a temporary or permanent

injunction on the grounds of changed circumstances or fundamental error.

Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 580 (Tex.

App.—Austin 2000). The purpose of a motion to dissolve is to provide a

means to show that changed circumstances require modification or

dissolution of the injunction. Id. Changed circumstances are conditions

that either alter the status quo after the issuance of the injunction or make

the injunction unnecessary or improper. Chase Manhattan Bank v. Bowles,

52 S.W.3d 871, 879 (Tex. App.—Waco 2001, no pet.).

It is common for deed restrictions to contain provisions providing

that if building plans or specifications are not approved in writing by the

ACC by a certain number of days, the plans or specifications are deemed

approved by the ACC. While Wohlrabe claims the ACC does not have the

power to approve plans that violate the restrictive covenants, the Texas

Supreme Court has held that such provisions are recognized to be “default

consequences in the event the ACC does not act swiftly enough.” Pilarcik,

966 S.W.2d at 40, n.3.

Wohlrabe contends there were no changed circumstances to support

dissolution. However, the record contains evidence that BCH did attempt to

38 seek ACC approval by mailing their building plans to the named ACC

members set out in the covenants, but that BCH received no response. (8

CR 6554, 6623-6635, 6661-6664.) Thus, BCH’s construction plans were

deemed approved, as the 30-day window in which the ACC could

disapprove closed with BCH receiving no response. (8 CR 6345-6471.)

These changed circumstances rendered the permanent injunction invalid

and improper due to the doctrine of deemed approval. Accordingly, the trial

court abused its discretion when it denied BCH’s Motion to Dissolve.

IV. The trial court erred when it granted summary judgment as to BCH’s counter claims against Wohlrabe and the other members of the LHPOA

Even if BCH’s counterclaims against Wohlrabe were barred at the

time originally asserted, on January 9, 2014, Wohlrabe and the other

members of the LHPOA asserted affirmative claims against BCH. (4 CR

2728–2744.) These affirmative claims sought a declaratory judgment that

Wohlrabe and the other members did not violate the very deed restrictions

that BCH alleged they did violate. Because Wohlrabe and the other

members initiated this action for affirmative relief against Blanchard on

January 9, 2014, BCH could then assert any counterclaims or cross-claim

against Wohlrabe and the other members arising out of the same

transaction or occurrence, so long as it did so “not later than the 30th day

39 after the date on which the party’s answer is required.” Tex. Civ. Prac. &

Rem. Code § 16.069. BCH’s live pleading at that time already asserted its

claim for affirmative relief against Wohlrabe and the other members, and

that claim for affirmative relief arose out of the very deed restriction

violations that Wohlrabe and the other members’ affirmative claim

addressed. So, BCH’s claim against Wohlrabe and the other members arose

out of the same transaction or occurrence as Wohlrabe and the other

members’ affirmative claims against BCH. Fallis v. River Mountain Ranch

Prop. Owners Ass’n, No. 04-09-00256-CV, 2010 WL 2679997, at *7–8

(Tex. App.—San Antonio July 7, 2010, no pet.) And it was asserted “not

later than the 30th day after the date on which the party’s answer was

required.” Thus, BCH’s claims are not time barred by the statute of

limitations. Tex. Civ. Prac. & Rem. Code § 16.069.

CONCLUSION

There was no basis to grant summary judgment against BCH. The

trial court erred in doing so. But the problem was deeper than simply an

erroneous grant of summary judgment.

As argued extensively in a companion mandamus filed by BCH and

granted by this Court, the “fix is in” in the trial court. See In re BCH

Development, LLC, No. 05-16-01481-CV (Tex. App.—Dallas); (Apx. Tab 1,

40 Petition for Writ of Mandamus); see also In re BCH Dev., LLC, 525 S.W.3d

920 (Tex. App.—Dallas 2017) (orig. proceeding) (Apx. Tab 2). The Court

should reverse the summary judgment. But absent firm guidance from this

Court, the trial court is likely to find a way to grant another one.

41 PRAYER

Appellant BCH Development, LLC prays that the Court:

(1) reverse the trial court’s orders granting summary judgment signed on March 27, 2014; August 27, 2014; January 21, 2015; February 24, 2015; March 9, 2015; (2) reverse the trial court’s order denying BCH’s Motion to Reconsider the granting of Wohlrabe’s Motion for Summary Judgment; (3) reverse the trial court’s order granting Wohlrabe and the LHPOA’s application for permanent injunction and dissolve the permanent injunction against BCH; (4) reverse the trial court’s orders granting summary judgment against BCH’s counterclaims for breach of restrictive covenants against the 27 individual homeowners; (5) reverse the trial court’s order denying BCH’s Motion to Dissolve; (6) reverse the trial court’s judgment as to Wohlrabe, including award of attorney’s fees and costs; (7) award costs for prevailing on appeal and any other relief to which Appellant BCH Development, LLC is entitled.

42 Respectfully submitted,

/s/ Shelby G. Hall Michael A. Yanof State Bar No. 24003215 LENAHAN LAW, P.L.L.C. 2655 Villa Creek, Suite 204 Dallas, Texas 75234 Telephone: (214)295-1008 Facsimile: (214) 295-2664 Email: Yanof@lenahanlaw.com

Shelby G. Hall State Bar No. 24086717 THOMPSON, COE, COUSINS & IRONS 700 N. Pearl Street, 25th Floor Dallas, Texas 75201 Telephone: (214) 871-8200 Facsimile: (214) 871-8209

Attorneys for Appellant

43 CERTIFICATE OF SERVICE

I hereby certify that on March 26, 2018, a true and correct copy of the foregoing document was served by electronic service to counsel of record.

Attorneys for Appellees:

David W. Elrod Worthy W. Walker Shackelford, Bowen, McKinley & Norton, LLP 9201 N. Central Expressway, 4th Floor Dallas, Texas 75231 E-mail: wwalker@shackelfordlaw.net

Brian A. Farlow Grable Martin Fulton PLLC 17766 Preston Road, Suite 106 Dallas, Texas 75252 E-mail: bfarlow@grablemartin.com

/s/Shelby G. Hall Shelby G. Hall

44 CERTIFICATE OF COMPLIANCE

I certify that this Brief contains 7,191 words, not including the parts excluded by Tex. R. App. P. 9.4(i)(1). Accordingly, it complies with Rule 9.4(i)(2)(C).

45 ACCEPTED 05-16-01481-CV 05-16-01481-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 12/16/2016 5:44:35 PM LISA MATZ CLERK

No. ________ FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 12/16/2016 5:44:35 PM In The LISA MATZ Clerk

COURT OF APPEALS fifth DISTRICT OF TEXAS Dallas, Texas

In Re BCH Development, LLC

Petition from Cause No. CC–13–05900–A County Court at Law No. 1, Dallas County, Texas Honorable D’Metria Benson, Presiding Judge

RELATOR’S PETITION FOR WRIT OF MANDAMUS

Michael A. Yanof Kristy Blanchard State Bar No. 24003215 State Bar No. 24046630 Email: myanof@thompsoncoe.com E-mail: kristy@blanchardthomas.com Thomas A. Culpepper Blanchard & Thomas, LLP State Bar No. 05215650 8150 N. Central Expressway Email: tculpepper@thompsoncoe.com Suite 1600 – South Tower II Cassie J. Dallas Dallas, Texas 75206 State Bar No. 24074105 Telephone: (866) 219-6119 Thompson, Coe, Cousins & Irons, L.L.P. Facsimile: (866) 332-4228 700 North Pearl St., 25th Floor Dallas, Texas 75201 Telephone: (214) 871-8200 Facsimile: (214) 871-8209

Counsel for Relator BCH Development, LLC TAB 1 ABBREVIATIONS AND REFERENCES IN THE PETITION

BCH BCH Development, LLC, defendant in the trial court, and Relator herein.

Blanchard Homes, LLC A former defendant in the trial court and entity related to BCH. Frank Blanchard is the managing member of BCH and Blanchard Homes.

Wohlrabe or the Barbara Wohlrabe and Lakeview Heights Association Property Owners’ Association, plaintiffs in the trial court and Real Parties in Interest herein.

MR Mandamus Record abbreviated. Specific citation is by tab and page number. For example, citation to Mandamus Record Tab A at page 4 is by “MR Tab A at 4.”

TAB 1 IDENTITY OF PARTIES AND COUNSEL

Relator BCH Development, LLC

Counsel for Relator Michael A. Yanof (trial & appellate counsel) Thomas A. Culpepper (trial counsel) Cassie J. Dallas (appellate counsel) Thompson Coe Cousins & Irons, L.L.P. 700 North Pearl St., 25th Floor Dallas, Texas 75201 Telephone: (214) 871–8200

Kristy Blanchard (co-trial counsel) Blanchard & Thomas, LLP 8150 N. Central Expressway Suite 1600—South Tower II Dallas, Texas 75206 Telephone: (866) 219–6119

Respondent The Honorable D’Metria Benson George L. Allen, Sr. Courts Building 600 Commerce Street Suite 550 Dallas, Texas 75202

Real Parties in Interest Barbara Wohlrabe and Lakeview Heights Addition Property Owners’ Association Counsel for Real Parties David W. Elrod (trial counsel) in Interest Worthy W. Walker (trial counsel) Brian A. Farlow (trial counsel) Barbara Wohlrabe (trial counsel) Gruber Elrod Johansen Hail Shank, LLP, 1445 Ross Avenue Suite 2500 Dallas, Texas 75202 Telephone: (214) 855–6800

TAB 1 TABLE OF CONTENTS

ABBREVIATIONS AND REFERENCES IN THE PETITION ....................... 2

IDENTITY OF PARTIES AND COUNSEL .................................................... 3

INDEX OF AUTHORITIES ........................................................................... 7

STATEMENT OF THE CASE ...................................................................... 10

STATEMENT OF JURISDICTION............................................................... 11

ISSUE PRESENTED ....................................................................................12

INTRODUCTION .........................................................................................13

STATEMENT OF FACTS ..............................................................................19

I. The Trial Court Grants Wohlrabe’s Declaratory Judgment ......19

II. The Jury Awards $290,000 in Reasonable Attorney’s Fees .... 20

III. The Trial Court Ignores the Jury Verdict ................................. 24

SUMMARY OF THE ARGUMENT.............................................................. 24

ARGUMENT................................................................................................ 27

I. Mandamus relief is available and necessary to review a trial court’s order granting a new trial on legally invalid grounds. .................................................................................... 27

A. Mandamus may issue to reverse a court’s order granting a new trial on unstated or legally invalid grounds. .......................................................................... 27

B. The trial court’s order granting a new trial on attorney’s fees has left BCH without an adequate remedy on appeal. ........................................................... 29

II. Granting new trial for BCH’s purportedly improper questions and argument is a legally invalid ground. ................ 30

TAB 1 A. To preserve error for evidence or argument, a party must timely object, obtain a ruling, and request an instruction to disregard, unless it is incurable. ................31

B. The trial court clearly abused its discretion in granting a new trial for purported violations of the limine orders. .................................................................. 33

1. Purported violations of the limine order on the law of block billing did not justify a new trial......................................................................... 35 2. Eliciting testimony regarding the unreasonableness of the hours billed did not justify a new trial. .................................................. 39 3. Arguing a floor on attorney’s fees of $150,000 in closing argument did not justify a new trial. ..... 42 C. Other jury arguments by BCH were not improper, not objected to by Wohlrabe, and not incurable. ............ 45

1. BCH’s argument that this case was a “money grab” was not improper, was not objected to by Wohlrabe, and was not incurable...................... 46 2. BCH’s argument questioning the formation of the homeowner’s association was not improper, was not objected to by Wohlrabe, and was not incurable. ........................................... 49 3. BCH’s argument regarding the suspect nature of the fee arrangement was not improper, was not objected to by Wohlrabe, and was not incurable. ............................................................... 50 4. BCH’s argument regarding failure to segregate cannot serve as a proper basis for a new trial. ....... 52 D. The purported indiscretions by BCH in questions and argument cannot serve as the proper basis for a new trial, individually or cumulatively............................ 53

TAB 1 III. There was factually sufficient evidence to support the jury’s award of attorney’s fees in the amount of $290,000. ..... 54

A. It is of no consequence that the amount $290,000 was not uttered specifically by a witness. ........................ 55

B. The attorney’s fees sought by Wohlrabe were contradicted. ................................................................... 57

CONCLUSION............................................................................................. 62

PRAYER ...................................................................................................... 64

CERTIFICATE OF SERVICE....................................................................... 65

CERTIFICATION PURSUANT TO TEX. R. APP. P. 52.3(j) ........................ 66

COMPLIANCE WITH TEX. R. APP. P. 9.4(i)(2)(B) ................................... 67

Certification Pursuant to Texas Rule of Appellate Procedure 52.3(k)

9/21/16 Order Granting Plaintiffs’ Motion for New Trial (MR Tab L) Tab 1

TAB 1 INDEX OF AUTHORITIES

CASES Bishop Abbey Homes, Ltd. v. Hale, No. 05–14–01137–CV, 2015 WL 9167799 (Tex. App.—Dallas 2015, pet. denied) .................................... 44, 45, 47, 48

Clark v. Bres, 217 S.W.3d 501 (Tex. App.—Houston [14th Dist.] 2006, pet. dism’d) ........................ 46, 48

Cullins v. Foster, 171 S.W.3d 521 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) ................... 56, 57, 61

Garcia v. Gomez, 319 S.W.3d 638 (Tex. 2010)................................................................55, 57

Goforth v. Alvey, 271 S.W.2d 404 (1954) ............................................................................. 45

Hur v. City of Mesquite, 893 S.W.2d 227 (Tex. App.—Amarillo 1995, writ denied) ............ 31, 32, 33

In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379 (Tex. 2005)..................................................................... 29

In re City of Houston, 418 S.W.3d 388 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding) ......................... 34

In re Columbia Med. Ctr. of Las Colinas, Sub., L.P., 290 S.W.3d 204 (Tex. 2009) (orig. proceeding).................... 27, 28, 29, 30

In re Reece, 341 S.W.3d 360 (Tex. 2011) ..................................................................... 29

In re Toyota Motor Sales, U.S.A, Inc., 407 S.W.3d 746 (Tex. 2013) (orig. proceeding) ....................................... 28

TAB 1 In re Wyatt Field Serv. Co., 454 S.W.3d 145 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding) .......... 29, 33, 34

In re Zimmer, Inc., 451 S.W.3d 893 (Tex. App.—Dallas 2014, orig. proceeding) ................... 28

Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678 (Tex. 2008) .................................................................... 32

Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850 (Tex. App.—Houston [14th Dist.] 1993, no writ) .......... 31

Nat. Un. Fire Ins. v. Kwiatkowski, 915 S.W.2d 662 (Tex. App.—Houston [14th Dist.] 1996, no writ) ........... 33

One Call Sys. v. Houston Lighting & Power, 936 S.W.2d 673 (Tex. App.—Houston [14th Dist.] 1996, writ denied) .............................. 31

Ortiz v. Ford Motor Credit Co., 859 S.W.2d 73 (Tex. App.—Corpus Christi 1993, writ denied) .......... 32, 33

Otis Elevator Co. v. Wood, 436 S.W.2d 324 (Tex. 1968) .................................................................... 45

Phillips v. Bramlett, 288 S.W.3d 876 (Tex. 2009).............................................................. 45, 49

Powell Elec. Systems, Inc. v. Hewlett Packard Co., 356 S.W.3d 113 (Tex. App.—Houston [1st Dist.] no pet.) ...................55, 57

Ragsdale v. Progressive Voters League, 801 S.W.2d 880 (Tex. 1990) .................................................................... 55

S.W. Greyhound Lines v. Dickson, 236 S.W.2d 115 (Tex, 1951) ...................................................................... 46

Scott v. Monsanto Co., 868 F.2d 786 (5th Cir. 1989) ................................................................... 28

TAB 1 State Bar of Tex. v. Evans, 774 S.W.2d 656 (Tex. 1989) ..................................................................... 32

STATUTES Texas Government Code § 22.221(b)(1) ....................................................... 11

OTHER AUTHORITIES Tex. Const. art. I, § 15 .................................................................................. 13

TAB 1 STATEMENT OF THE CASE

The Underlying The underlying case is a declaratory judgment Proceeding: action involving deed restrictions in a neighborhood. (MR Tab B at 4–10.) BCH is a homebuilder seeking to build a home in the neighborhood. The mandamus stems solely from a jury trial on attorney’s fees. Specifically, the trial court granted summary judgment on Wohlrabe’s declaratory judgment. (MR Tab D at 4–5.) A jury trial ensued on attorney’s fees. The jury awarded $290,000 to Wohlrabe in reasonable attorney’s fees. (MR Tab I at 3.)

The Respondent: D’Metria Benson, Presiding Judge, County Court at Law No. 1, Dallas County, Texas.

Respondent’s The trial court ignored the jury’s verdict on Actions: attorney’s fees, instead granting Wohlrabe’s Motion for New Trial. (MR Tab L at 6; Apx. 1 at 6.)

Relief Sought: Relator seeks an order reversing the order granting a new trial, and either rendering judgment on the jury verdict or ordering the trial court to do so.

TAB 1 STATEMENT OF JURISDICTION

This Petition for Writ of Mandamus arises out of an order signed by

Judge D’Metria Benson, the presiding judge of County Court at Law No. 1,

Dallas County, Texas. (MR Tab L at 6; Apx. 1 at 6.) Accordingly, the Court

has jurisdiction pursuant to Texas Government Code § 22.221(b)(1).

TAB 1 ISSUE PRESENTED

I. An order granting a new trial must articulate reasons in support that

are specific and legally correct. Here, the stated bases in the trial

court’s order granting new trial are summarized as (a) BCH violated

limine orders in its questions to witnesses, (b) BCH made improper

jury arguments in closing argument, and (c) the evidence was

factually insufficient to support the jury’s award of $290,000 in

attorney’s fees. Did the trial court clearly abuse its discretion

in granting a new trial, leaving BCH without an adequate

remedy by appeal, when:

a. the purported limine violations were not violations or improper at all, were not objected to with a request for an instruction to disregard or motion for mistrial, or were not incurable such that no objection was necessary; b. BCH’s jury arguments, made in large part without any objection from Wohlrabe, were based on inferences drawn from the evidence, and at no time did Wohlrabe request an instruction to disregard or move for mistrial; and c. there was factually sufficient evidence contradicting Wohlrabe’s claim that $579,000 was a reasonable attorney’s fees for the work done on the declaratory judgment claim, and that $290,000 was within the range of a reasonable attorney’s fees for the work?

TAB 1 INTRODUCTION

Equal justice under law. Supreme Court Building—Supreme Court of the United States

As long as the United States Supreme Court has sat in its own

building, these words have served as a beacon over the entrance. The

phrase, based in the 14th Amendment to the United States Constitution,

guarantees this inalienable right to all litigants.

This short phrase is actually two guarantees. First, “equal justice”

seeks to guarantee that no one, in any court, is given preferential treatment.

Not based on wealth. Or race. Or status. Or a judge’s affection for the

lawyers on one side.

Second, “under law” means subjective notions of fairness do not

trump established legal principles. In other words, a judge cannot pick the

winner despite the law compelling a different result.

The right of trial by jury shall remain inviolate. Tex. Const. art. I, § 15

Contrary to equal justice under law, the judge in County Court at Law

No. 1 in Dallas County has administered—throughout the pendency of the

underlying case—unequal justice above the law. Unequal because the judge

has played favorites towards one party and her lawyers. Above the law

because the judge’s preference for one side has trumped legal principles.

TAB 1 This mandamus does not intend to point out all examples of unequal

justice above the law. It will focus only on one: the trial court’s granting of a

new trial on attorney’s fees as a result of the jury’s failure to award as much

money as the favored party and her attorneys asked the jury to award. This

jury trial occurred after the trial court granted summary judgment on the

favored party’s declaratory judgment claims in a deed restriction case. As

there were no actual damages claimed, the only issue for jury trial—before

an appeal on the declaratory judgment claims—was attorney’s fees. During

pre-trial, the trial court severely hamstrung the disfavored party by limiting

the matters on which its attorney’s fees’ expert could testify in refuting the

favored party’s claim for attorney’s fees.

Given the trial court’s affection for the favored party, the disfavored

party assumed that every single ruling—discretionary or otherwise—would

go against it at trial. This would prove to be a correct assumption. But the

disfavored party nevertheless took solace in trying the attorney’s fees claim

to a jury, for at least four reasons.

First, the disfavored party would finally be in front of a jury, who

could administer equal justice under law, without playing favorites.

Second, the favored party was not seeking actual damages yet was

seeking almost $600,000 in attorney’s fees. Who was the client who had

TAB 1 incurred these fees? A lawyer at the law firm representing the favored

party. The lawyer is the client, and the client is the lawyer. Further, the

“client” and “attorney” had a contingency fee agreement, despite this

incestuous relationship and no actual damages.

Given this arrangement and the exorbitant fees sought, the disfavored

party liked its chances in arguing this claim for attorney’s fees was nothing

more than a fee-generating mechanism for the law firm. A “lawyer money

grab,” if you will.

Third, the disfavored party liked it chances cross-examining the

favored party’s attorney’s fees’ expert—an attorney at the law firm where

the client/lawyer worked. The disfavored party believed they had numerous

cross-examination points—from failing to segregate fees, to block billing

(which prevented the jury from determining recoverable and reasonable

fees), to the inexperience of the favored party’s attorneys in handling deed

restriction cases.

Fourth, the disfavored party had its own attorney’s fees expert. He

was an experienced deed restriction lawyer. He had represented the

disfavored party in the case. He could speak to handling a deed restriction

case and what fees would reasonably be expected to be incurred in a typical,

even contentious, case. The disfavored party would present this as a

TAB 1 suggested floor on attorney’s fees, leaving the amount to be awarded up to

the jury.

With this in mind, the claim for attorney’s fees proceeded to a jury

trial. The disfavored party was correct in its assumption—every single

ruling of substance went against it. But the four above-noted reasons and

strategies gave it hope that the jury would reduce the fees sought by the

favored party.

And this is precisely what happened. A thoughtful jury paid attention

to all the evidence in awarding attorney’s fees. The jury apparently listened

to the relationship between the favored party as the client and as the lawyer

in the case, and the favored party’s attorney’s fees expert as the

client/lawyer’s boss. The favored party’s expert on attorney’s fees also

reported he was the boss of the favored party’s lead lawyer and that the lead

lawyer answered to him in the case. The jury apparently also listened to

cross-examination of the favored party’s attorney’s fees expert on the

aforementioned matters. And the jury heard from the disfavored party’s

attorney’s fees’ expert, who testified what should reasonably be incurred in

terms of hours spent by lawyers in prosecuting a typical, albeit contentious,

deed restriction case. Finally, the jury apparently listened to closing

TAB 1 arguments, in which the disfavored party argued that this arrangement and

the attorney’s fees sought reflected a “lawyer money grab.”

What did the jury do with this evidence? Essentially it awarded

attorney’s fees in an amount in between what the favored party advocated,

and what the disfavored party asked that it consider. More than the floor.

Less than the ceiling. The jury awarded $290,000, to be precise.

Injustice anywhere is a threat to justice everywhere. Martin Luther King, Jr.

All that appeared to be left after the jury’s verdict on attorney’s fees

was entering judgment. The claims for declaratory relief were already

decided—in favor of the favored party—on summary judgment. Once a

judgment was entered on the jury verdict on attorney’s fees, the parties

could appeal as they saw fit, on all issues ranging from the declaratory

judgment to attorney’s fees.

The disfavored party filed a motion for entry of judgment simply

seeking entry of judgment on the jury verdict. The favored party sought a

judgment notwithstanding the verdict, or alternatively a new trial, arguing

that the jury didn’t award enough in attorney’s fees.

The trial court heard these motions together, taking them under

advisement. By order entered September 21, 2016, the trial court granted

TAB 1 the favored party’s motion for new trial. The order granting a new trial on

attorney’s fees can be summarized as stating three (albeit improper)

grounds.

First, the disfavored party supposedly elicited testimony on a lowered

amount of attorney’s fees that was not allowed based on the court’s rulings

throughout trial against the disfavored party.

Second, the disfavored party apparently engaged in improper jury

argument by arguing that the claim for attorney’s fees was a “lawyer money

grab.”

Third, the jury wasn’t told an exact number that should be the floor

on attorney’s fees, and thus was required to award the ceiling. Related, the

jury never heard the actual amount it awarded, $290,000, and thus could

not award this amount.

The order granting new trial is long. Many “indiscretions” noted in it

were not objected to by the favored party during trial—including the

“lawyer money grab” jury argument. Others reflect proper lines of

questioning and argument in a case where attorney’s fees are sought,

particularly when approximately $580,000 is sought in fees, the attorney

and the client are the same, and there are no actual damages. Finally, at no

TAB 1 time did the favored party seek a mistrial for these or any other supposed

indiscretions.

More fundamentally, none of these stated reasons is a proper ground

for granting a new trial. The trial court clearly abused its discretion in

granting a new trial on attorney’s fees. The court improperly stripped the

jury of its duty in faithfully rendering a verdict.

In granting a new trial, the trial court ignored equal justice under law.

Instead, it carried out unequal justice above the law. The court’s favoritism

and outcome-determinative approach—all the while stripping the jury of its

verdict on the fact-driven claim of attorney’s fees—should not stand.

This Court should reverse and render judgment on attorney’s fees

consistent with the jury’s verdict. Alternatively, the Court should reverse

and instruct the trial court to do so.

STATEMENT OF FACTS

I. The Trial Court Grants Wohlrabe’s Declaratory Judgment

The underlying case is a deed restriction case. (MR Tab B at 4–10.)

Wohlrabe—acting as both a plaintiff and an attorney in the case—created

the Association and brought suit against BCH and Blanchard Homes, LLC.

(MR Tab B at 18; MR Tab N at 126.) She sought to enforce a deed

TAB 1 restriction that prohibited building a house with more than one story. (MR

Tab B at 4–5.)

The case has lingered in the trial court since October 13, 2013. (MR

Tab A at 1.) Eventually, Wohlrabe sought a summary judgment on the

declaratory judgment. (MR Tab C at 11.) The trial court granted Wohlrabe’s

motions for summary judgment, including granting a permanent injunction

that prevented BCH and Blanchard Homes, LLC from building the home in

the neighborhood. (MR Tab D at 4–5.) This endeavor by Wohlrabe—

creating a homeowners’ association and seeking a declaratory judgment on

the deed restrictions—apparently ran up attorney’s fees at her law firm of

almost $580,000. (MR Tab M at 58–89; MR Tab N at 182.)

Wohlrabe also originally asserted a claim for tortious interference.

(MR Tab B at 19.) But this is not a claim for which attorney’s fees was

available. Wohlrabe abandoned this claim before the jury trial on attorney’s

fees. Wohlrabe also nonsuited Blanchard Homes, LLC shortly before the

trial on attorney’s fees. (MR Tab E at 2; MR Tab F at 1–2.).

II. The Jury Awards $290,000 in Reasonable Attorney’s Fees

Sometime after obtaining summary judgment, Wohlrabe proceeded

to a jury trial on attorney’s fees. David Elrod was designated as Wohlrabe’s

expert on attorney’s fees. (MR Tab H at 2.) Travis Kitchens was designated

TAB 1 as BCH’s expert to refute Elrod’s testimony and address the reasonableness

of the fees sought by Wohlrabe. (MR Tab G at 20.)

Elrod is the boss of Wohlrabe and supervises Brian Farlow, lead trial

counsel for the Association. (MR Tab N at 14.) He testified that his firm—

despite seeking no actual damages—had a contingency fee agreement with

Wohlrabe, the client/attorney. (MR Tab M at 43.) From this arrangement,

Elrod testified that $579,954.45 were attorney’s fees attributable to the

declaratory judgment claims. (MR Tab M at 91; MR Tab N at 183.) He

further testified that segregated amounts were already taken out of this

amount. (MR Tab M at 38-39, 43-44, 89-94.) Elrod further stated that the

fees were reasonable in light of the extensive work that had been put into

the case. (MR Tab N at 79.)

On cross-examination Elrod admitted that he had never before taken

a homeowners’ case on a contingency fee basis. (MR Tab M at 103.) BCH

further established that Elrod did not specialize in homeowners’ association

cases, having handled only one of them before. (MR Tab M at 103.) The

cross-examination also involved going through numerous time entries

which were so heavily redacted and block billed that it could not reasonably

be determined (1) whether entries related to the claim for which fees were

TAB 1 recoverable, and (2) whether tasks and time spent were reasonable. (MR

Tab M at 121–26.)

In BCH’s case-in-chief, Travis Kitchens testified. (MR N at 54.)

Drawing on the experience gained from handling over two hundred

homeowners’ cases, Kitchens testified that the billing method and extensive

redactions by Wohlrabe’s law firm made it nearly impossible to determine

whether the fees had been properly segregated. (MR Tab N at 115.) Kitchens

also testified that Wohlrabe’s extended delay in filing her motion for

summary judgment, in which Wohlrabe ultimately prevailed, led to a

significant amount of additional, unnecessary work and fees. (MR Tab N at

95–96.) In this regard, Kitchens went through the docket sheet and noted a

one-year delay from when summary judgment could have been sought and

when summary judgment was sought and granted. (MR Tab N at 79.) The

attorney’s fees during this one-year delay were $361,000. (See MR Tab N at

79; MR Tab O at 1–3.) Subtracted from $579,954.45, this “floor” would be

$218,117.95. For these and other reasons, Kitchens testified that in his

opinion the fees sought by Wohlrabe were unreasonable. (MR Tab N at

154.)

But he didn’t stop there. He also testified that there is a typical and

reasonable manner in which a deed restriction case, in his vast experience,

TAB 1 should be handled. (MR Tab N at 58–105.) Going through task by task, he

explained a range of hours it should take to handle this type of case, even if

contentious like this one. (MR Tab N at 97–105.) The outer limit of this

range totaled 620 hours. (Id.) Using the billable rate of Wohlrabe’s lead

trial counsel, this outer limit would result in a “floor” of $170,500. (See MR

Tab M at 46.) Using the lower limit of the range would result in a much

lower amount more in the range of $150,000. (MR Tab M at 46; MR Tab N

at 97–105.)

After all evidence, the parties presented closing arguments. (MR Tab

N at 176–198.) Wohlrabe advocated for an award of $579,954.45. (MR Tab

N at 177.)

BCH argued that the fees sought by Wohlrabe and her law firm

constituted a “lawyer money grab.” (MR Tab N at 186.) BCH then

advocated for a lower amount, either as low as the floors or by reducing the

ceiling advocated by Wohlrabe. (See MR Tab N at 192.) Counsel for

Wohlrabe objected repeatedly to BCH’s arguments, and every objection was

sustained—even when no basis for the objection was stated. (MR Tab N at

186–93.) Notably, though, counsel for Wohlrabe did not object to the

money grab argument. (MR Tab N at 186–87.) Also, at no time during

closing argument did Wohlrabe request an instruction to the jury to

TAB 1 disregard or move for a mistrial. (See MR Tab N at 186–93.) In fact, at no

time throughout the trial did Wohlrabe move for a mistrial, despite the

numerous claimed indiscretions by BCH.

After closing arguments, the jury deliberated. The jury rendered a

verdict that awarded Wohlrabe $290,000 in reasonable attorney’s fees.

(MR Tab Tab I at 3.)

III. The Trial Court Ignores the Jury Verdict

The trial court ignored the jury’s verdict, granting a new trial for

Wohlrabe on attorney’s fees. (MR Tab L at 6; Apx. 1 at 6.) In its order, the

court advocated that violations of the court’s limine order and part of BCH’s

jury argument were improper, incurable, and likely led to an improper

verdict. (MR Tab L at 5; Apx. 1 at 5.) The order further stated that the

evidence was factually insufficient for the jury to only award $290,000.

(MR Tab L at 5; Apx. 1 at 5.)

SUMMARY OF THE ARGUMENT

When a trial court grants a new trial on legally invalid grounds,

courts of appeals may conduct a “merits review” of the correctness of the

new trial order. Here, the trial court granted Wohlrabe’s motion for new

trial, stating that violations of the court’s limine orders and improper jury

arguments likely led to the rendition of an improper judgment. The court

TAB 1 also stated that a new trial was appropriate because the evidence was

factually insufficient to support the jury’s verdict. These grounds,

individually or collectively, are legally incorrect and do not support

properly granting a new trial.

As to the limine orders, purported violations were not valid grounds

for the grant of new trial because a limine violation alone is inadequate to

support the drastic act of throwing out a jury’s verdict. Further, it is

questionable at best that BCH even violated the limine orders, as the trial

court’s erratic rulings were inconsistent and outside the orders’ parameters.

But even assuming BCH violated the court’s limine orders, the violations

were curable, and Wohlrabe failed to preserve error by properly objecting,

requesting an instruction to disregard, and seeking a mistrial.

As to the jury arguments made by BCH, they similarly cannot serve as

a proper basis for a new trial because they were neither improper nor

incurable. In contrast, BCH’s arguments were based on inferences properly

drawn from the evidence. Moreover, the arguments were not sufficiently

outrageous to constitute incurable error. Wohlrabe failed to object to all but

one of these arguments, and did not request an instruction to disgreard or

move for mistrial as to any of them. Thus, error was not preserved as to any

of BCH’s jury arguments.

TAB 1 Finally, the evidence was factually sufficient to support the jury’s

verdict. Specifically, BCH presented factually sufficient evidence that the

fees sought by Wohlrabe were unreasonable. BCH did so by cross-

examining Wohlrabe’s expert on attorney’s fees. It also did so by presenting

testimony from its own expert on attorney’s fees, from which two methods

to calculate a floor on attorney’s fees were presented to the jury. From this

evidence, the jury could (1) award Wohlrabe the fees sought; (2) reduce

these fees sought; (3) award one of the “floor” amounts; or (4) award fees in

between the ceiling and the floor. The jury chose option four, and acted

within its purview in doing so.

The trial court clearly abused its discretion in granting a new trial

because the court failed to articulate any legally valid ground supporting a

grant of new trial. Accordingly, this Court should reverse the trial court’s

order and reinstate the jury’s verdict.

TAB 1 ARGUMENT

I. Mandamus relief is available and necessary to review a trial court’s order granting a new trial on legally invalid grounds.

A. Mandamus may issue to reverse a court’s order granting a new trial on unstated or legally invalid grounds.

Trial courts used to have broad discretion to grant new trials for

virtually any or no stated reason. Stated another way, the trial court was not

required to state a reason for granting new trial, much less a legally sound

reason.

This broad discretion, however, was restricted by the Texas Supreme

Court in 2009. See In re Columbia Med. Ctr. of Las Colinas, Sub., L.P., 290

S.W.3d 204, 210, 213 (Tex. 2009) (orig. proceeding). The Court in

Columbia held that a trial court abuses its discretion by granting a motion

for new trial without providing a reasonably specific reason for setting aside

the jury’s verdict. Id. (“The trial court’s action in failing to give its reasons

for disregarding the jury’s verdict as to Columbia was arbitrary and an

abuse of discretion.”).

Four years later, the Texas Supreme Court further expanded

mandamus review of orders granting new trials in holding that an appellate

court may conduct a “merits review” of the correctness of a new trial order.

In re Toyota Motor Sales, U.S.A, Inc., 407 S.W.3d 746, 757–59 (Tex. 2013) 27

TAB 1 (orig. proceeding) (stating that a new trial order cannot stand if the court’s

articulated reasons are not supported by the underlying record). The Court

reasoned that “[s]imply articulating understandable, reasonably specific,

and legally appropriate reasons is not enough: the reasons must be valid

and correct.” Id. at 759.

Requiring increased specificity and legal correctness protects a

litigant’s right to a jury trial by ensuring a trial judge cannot set aside a

verdict simply because the judge sees the evidence differently. Columbia,

290 S.W.3d at 212 (quoting Scott v. Monsanto Co., 868 F.2d 786, 791 (5th

Cir. 1989) (stating that “a trial court’s discretion in granting a new trial is

not ‘impenetrable’ and that ‘careful scrutiny given to orders of new trials is

intended to assure that the court does not simply substitute [its] judgment

for that of the jury.’”)). It also protects against a rogue judge playing

favorites and showing outcome-determinative preferences to one side by

giving a litigant multiple bites at the apple with unjustified new trials.

Since Columbia and Toyota, appellate courts—including this Court—

have granted mandamus relief in reversing trial court orders granting new

trials on unspecified or legally invalid grounds. See, e.g., In re Zimmer,

Inc., 451 S.W.3d 893, 900 (Tex. App.—Dallas 2014, orig. proceeding); In re

TAB 1 Wyatt Field Serv. Co., 454 S.W.3d 145, 149 (Tex. App.—Houston [14th

Dist.] 2014, orig. proceeding).

B. The trial court’s order granting a new trial on attorney’s fees has left BCH without an adequate remedy on appeal.

The two requisites for obtaining mandamus relief for an improper

grant of new trial are the same as for any mandamus: (1) the trial court

clearly abused its discretion and (2) there is no adequate remedy by appeal.

In re Reece, 341 S.W.3d 360, 364 (Tex. 2011). A trial court clearly abuses its

discretion when its decision is so arbitrary and unreasonable as to amount

to a clear and prejudicial error of law, or if it fails to analyze or apply the

law correctly. See In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382

(Tex. 2005). Here, the trial court clearly abused its discretion when it

granted Wohlrabe’s Motion for New Trial on legally invalid grounds.

As to the second element, the long-established rule in Texas—that an

order granting a motion for new trial generally is not subject to appellate

review—ended with Columbia and Toyota. See Columbia, 290 S.W.3d at

209 (reasoning that absent mandamus review, Columbia would have no

appellate review of the order granting new trial). Now, a litigant lacks an

adequate remedy by appeal when the order granting new trial either

TAB 1 (1) does not state the reasons or (2) states legally or factually invalid

reasons. Id.

The latter basis leaves BCH with no adequate remedy by appeal here.

Also, affording Wohlrabe a new trial on attorney’s fees would provide her

two bites at the apple, on grounds that were legally invalid.

II. Granting new trial for BCH’s purportedly improper questions and argument is a legally invalid ground.

In its order granting new trial, the trial court documented a laundry

list of supposed instances in which BCH violated the court’s supplemental

limine order and made improper jury arguments. For example, the court

said BCH violated the trial court’s limine order by presenting testimony and

argument regarding (1) the number of hours BCH’s expert believed would

have been reasonable and (2) BCH’s assertions that $150,000.00 was a

reasonable attorney’s fee.

The court further noted that certain parts of BCH’s jury argument

caused incurable harm, including argument that: (1) the case was about a

“lawyer money grab”; (2) attacked the creation of an association by some

property owners; (3) criticized counsel for the Association’s use of block

billing as preventing scrutiny of the billing entries; and (4) counsel for the

Association’s failure to segregate entries related to a cause of action that

was dropped (and for which attorney’s fees were not recoverable).

TAB 1 Each of these grounds is legally invalid and cannot support the proper

grant of new trial for three reasons. First, BCH did not violate the limine

order. Second, most of the purportedly improper jury arguments were not

objected to and were not incurable. Third, for those jury arguments that

were objected to, no mistrial was sought, and these arguments were not

incurable.

A. To preserve error for evidence or argument, a party must timely object, obtain a ruling, and request an instruction to disregard, unless it is incurable.

When improper testimony or argument reaches the jury, the party

opposing the evidence or argument generally must object and obtain a

ruling. One Call Sys. v. Houston Lighting & Power, 936 S.W.2d 673, 677

(Tex. App.—Houston [14th Dist.] 1996, writ denied); Hur v. City of

Mesquite, 893 S.W.2d 227, 231 (Tex. App.—Amarillo 1995, writ denied). To

pursue a ruling, a party must first make a proper and specific objection to

the evidence or argument presented. If the court overrules the objection,

the error is preserved and no further action need be taken. Lone Star Ford,

Inc. v. Carter, 848 S.W.2d 850, 854 (Tex. App.—Houston [14th Dist.] 1993,

no writ).

But if the court sustains a timely objection, the objecting party must

then ask the court to instruct the jury to disregard the evidence. State Bar

TAB 1 of Tex. v. Evans, 774 S.W.2d 656, 658 n. 6 (Tex. 1989). Additionally, once

the court sustains the objection and instructs the jury to disregard, the

party must then move for mistrial in order to later seek a new trial as a

result of the improper question or argument. See Hur, 893 S.W.2d at 231–

32; Ortiz v. Ford Motor Credit Co., 859 S.W.2d 73, 77–78 (Tex. App.—

Corpus Christi 1993, writ denied).

If a party fails to follow these steps, the party generally waives any

objection to the error. The exception is when an improper line of questions

or argument is incurable. The instances of Texas courts finding questions or

argument incurable are rare. What does not suffice as incurable is merely

violating a limine order or a rule of evidence in introducing evidence or

making an argument. What might suffice as incurable is argument violating

all bounds of decency. Instances of such incurable argument include racial

attacks or comparing a party to a genocidal murderer like Hitler. See, e.g.,

Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008).

In granting a new trial, the trial court cited multiple instances where

allegedly improper argument and testimony were permitted to reach the

jury. Notwithstanding, Wohlrabe only requested a curative instruction for

one of these. Moreover, Wohlrabe did not at any time move for a mistrial.

Consequently, Wohlrabe failed to preserve error as to any of the allegedly

TAB 1 improper testimony or jury argument, unless the arguments were

incurable. See Hur, 893 S.W.2d at 231-32; Ortiz, 859 S.W.2d at 77-78. To

find these arguments incurable would set a dangerously low bar for

incurable arguments that no Texas court has dared approach.

B. The trial court clearly abused its discretion in granting a new trial for purported violations of the limine orders.

When evidence or argument is placed before the jury in violation of a

motion in limine, an instruction to disregard is generally sufficient to cure

the error. In re Wyatt Field Serv. Co., 454 S.W.3d 145, 161 (Tex. App.—

Houston [14th Dist.] 2014, orig. proceeding). While curable violations

require counsel to object and pursue an adverse ruling to preserve error (or

object and request an instruction to disregard if the objection is sustained),

incurable violations may serve as the basis for a new trial even if not

properly preserved. See Wyatt Field Serv. Co., 454 S.W.3d at 161; Nat. Un.

Fire Ins. v. Kwiatkowski, 915 S.W.2d 662, 664–65 (Tex. App.—Houston

[14th Dist.] 1996, no writ).

When conducting appellate review of the purported violation of a

limine order, the appellate court will determine whether the instruction

issued by the trial court was sufficient to cure the error. In re City of

Houston, 418 S.W.3d 388, 397 (Tex. App.—Houston [1st Dist.] 2013, orig.

TAB 1 proceeding). But when a curative instruction is neither requested nor

issued, a curable violation is waived and cannot serve as a proper basis for

granting a new trial. Wyatt Field Serv. Co., 454 S.W.3d at 161.

The trial court below issued three supplemental limine orders. The

first order instructs the parties not to argue any law prohibiting block

billing:

[a]ny testimony, evidence, or argument that any law requires a party seeking to recover attorney fee statements which utilize task billing, i.e., which reflect the amount of time spent on each task performed by the attorney, paralegal, legal assistant, or any law that prohibits block billing.

(MR Tab N at 13.)

The second and third orders limit the matters over which BCH’s

expert was permitted to testify:

[h]e can opine that he thinks that the amount that was disclosed is improper. . . . [H]e can also opine as to why he thinks that, but he cannot opine as to what he thinks an appropriate number would have been. . . . He can testify to hours, but not amounts.

(MR Tab N at 51, 53) (emphasis added.)

In its order granting new trial, the court stated that BCH made

arguments and elicited testimony violating all three of these supplemental

limine orders. (MR Tab L at 2; Apx. 1 at 2.) It is questionable at best that

BCH violated these limine orders. But either way, Wohlrabe waived error

TAB 1 by failing to ask for a curative instruction. Nor did Wohlrabe ever move for

a mistrial at any time during the trial. Even when taken cumulatively, none

of the alleged violations constitute incurable error; thus, there is no basis

for granting a new trial.

1. Purported violations of the limine order on the law of block billing did not justify a new trial.

BCH did not violate the court’s supplemental limine order regarding

block billing. Specifically, the supplemental order precluded BCH from

ascertaining or arguing “that any law requires” the use of task billing or

prohibits block billing. (MR Tab N at 13.) After the court’s issuance of this

order, however, the record is bereft of testimony or argument regarding any

such matter.

In this regard, the following excerpts of the record comprise the

entirety of the block billing testimony and argument that occurred after the

issuance of the court’s supplemental order. During the direct examination

of BCH’s expert witness, there were three different occasions where counsel

for Wohlrabe objected to testimony regarding the impact of block billing:

Q: (By Mr. Yanof) If you do not itemize each amount and instead simply block bill amounts, does that make it –– well, what does that do to your bill?

Mr. Farlow: Objection, Your Honor. This is – –

The Court: Sustained.

TAB 1 (MR Tab N at 63.)

*** Q: So you bill each single thing you do, and then put the actual time spent next to it?

A: Yes, sir.

Mr. Farlow: Objection, Your Honor, relevance.

(MR Tab N at 65–66.)

*** Q: (By Mr. Yanof) In looking through these bills, Mr. Kitchens, can you figure out whether any of the research done was devoted to the tortious interference claim, a claim on which plaintiffs could not recover attorneys’ fees?

A: For the most part, no. If you look at Exhibit 4, the first page, there’s four entries. And on the next page there’s another entry for legal fee. And ––

Q: This is the first page of Exhibit 4 – –

Q: – – just for reference.

A: And that doesn’t tell me one way or the other what they’re researching, whether it would be recoverable or not recoverable.

Mr. Farlow: Objection, Your Honor. He’s asking the question that – –

TAB 1 (MR Tab N at 84–85.)

That these objections were sustained shows the favoritism the trial

court showed to the favored party, Wohlrabe. For two of the objections,

counsel did not even state the basis for the objection. For all of them, these

were proper questions.

But more to the point, these questions did not ask the witness to

comment on the law of task or block billing. Rather, they properly asked

about the limitations that block billing places on scrutinizing bills to

determine reasonable attorney’s fees attributable to a recoverable claim.

A similar sequence played out in closing arguments. That is,

Wohlrabe objected to jury argument addressing the implications of block or

task billing:

They bill – – if we can look at the bill, the way they did it, they chose to do this. You heard Mr. Elrod testify he could have done it either way. He could have – – he could have billed – –

Mr. Farlow: You Honor, objection. I’m sorry. This is going into the – –

The Court: Be careful, Mr. Culpepper.

Mr. Culpepper: All I’m – – my only statement is if you – – from these bills, you can’t determine how much time they spent. You heard Mr. Kitchens say he sends his client itemized bills. He can’t determine it. You can’t – – the other expert can’t segregate.

Mr. Farlow: Objection.

TAB 1 The Court: Sustained.

(MR Tab N at 188–89.)

Again, Wohlrabe’s counsel failed to state the basis for his objection.

More importantly, this argument had nothing to do with “the law” of block

or task billing. Instead, it simply makes the point that block billing in this

manner makes it difficult to segregate recoverable fees from non-

recoverable fees and to determine whether each task in a block-billed entry

was reasonable. Because BCH did not violate the supplemental orders in

limine, “violation” of the court’s limine order regarding block billing cannot

serve as a proper basis for a grant of new trial.

Yet, even if BCH violated the court’s order, the violations were neither

preserved nor incurable error. In its order granting new trial, the trial court

stated that the testimony and argument made regarding block billing

constituted incurable error. This means that, assuming BCH violated the

limine order, the violations were so severe that an instruction to disregard

would not have cured the violation’s prejudicial effect. The testimony and

argument outlined above, however, are proper, and certainly not so extreme

or shocking that an instruction to disregard would not have been effective.

Thus, any violation of the order regarding block billing was curable and

TAB 1 must have been properly preserved in order to serve as a legitimate basis for

a grant of new trial.

Wohlrabe did not preserve error with regard to BCH’s alleged

violations of the court’s supplemental order because no mistrial was sought.

At no time during the trial—with all of the alleged indiscretions committed

by BCH—did Wohlrabe move for a mistrial. In fact, the only time an

instruction was requested was before day two of trial began, and before the

testimony and argument at issue were presented. Accordingly, this stated

basis in the order granting new trial is not substantively valid or correct and

cannot support properly granting a new trial.

2. Eliciting testimony regarding the unreasonableness of the hours billed did not justify a new trial.

There were multiple instances in this case where BCH attempted to

put on testimony that the hours billed by Wohlrabe attorneys were

unreasonable. While this was not in violation of the limine order on this

matter—which precluded testimony as to a dollar amount that the expert

thought would be appropriate (MR Tab N at 51, 53)—the court stated in its

order granting new trial that BCH had violated the order many times. The

following excerpts from the record contain the entirety of the expert’s

testimony in question:

TAB 1 Q: But in your experience as a 37-year lawyer handling HOA cases, do you have an opinion about whether the total amount of hours expended by the law firm representing the plaintiff’s was reasonable?

A: I have an opinion.

Q: What is that opinion?

A: It’s unreasonable.

Q: In your experience as a 37-year lawyer specializing in HOA cases, how many hours do you believe are reasonable in prosecuting a deed restriction case, the claim on which attorney’s fees are recoverable?

Mr. Farlow: Objection, Your Honor. That’s the exact – –

(MR Tab N at 89.)

***

Q: (By Mr. Yanof) You heard the testimony yesterday that the total amount of hours in this case by plaintiffs’ counsel’s firm, including plaintiff herself, is most – – who has more hours than anybody else us 2,560.50 hours. Do you recall that?

A: That’s what their exhibit shows?

Q: Have you ever seen that many hours in a deed restriction case?

Mr. Farlow: Objection, Your Honor.

(MR Tab N at 97.)

TAB 1 For starters, yet again Wohlrabe’s counsel did not state a basis for the

objection. No matter, the trial court again sustained the objections.

More fundamentally, in asking the number of hours instead of the

dollar amounts, BCH carefully complied with the trial court’s supplemental

limine orders (misguided as they were). (MR Tab N at 51, 53.) The trial

court continually hamstrung BCH anyway, sustaining objections that did

not violate the order and without a stated basis. Simply put, if the favored

party asked for it, the favored party got it.

Be that as it may, at no point in these exchanges between BCH’s

counsel and its expert witness did counsel request, or the witness suggest, a

specific dollar amount that would have been reasonable (as prohibited by

the limine order). Furthermore, this testimony was directly within the

parameters of the trial court’s instruction that the witness may “testify as to

hours, but not amounts.” (MR Tab N at 51, 53.) Therefore, because there

was no violation in the first place, a purported violation of this limine order

cannot serve as the basis for a proper grant of a new trial.

But even if this supplemental limine order was violated, the error was

curable and not properly preserved. Any error arising from these alleged

violations was curable because an instruction most assuredly would have

eliminated any prejudice created by the purportedly improper questions.

TAB 1 This is due in large part to the fact that the witness was not permitted to

provide an answer to these questions, let alone provide a dollar amount

that he deemed reasonable for this case. The alleged violations thus did not

constitute incurable error.

Because any alleged error related to this particular limine order was

curable, Wohlrabe’s counsel was required to preserve error by pursuing an

adverse ruling or if sustained, request an instruction. Wohlrabe failed to do

so. Consequently, any error was waived and this ground, as outlined in the

trial court’s order, cannot support the trial court’s grant of a new trial.

3. Arguing a floor on attorney’s fees of $150,000 in closing argument did not justify a new trial.

In its order granting new trial, the court stated that BCH violated its

pretrial rulings when it argued to the jury that $150,000 as a floor would be

a reasonable attorney’s fee to award. (MR Tab L at 2; Apx. 1 at 2.) The basis

for this jury argument was two-fold.

First, BCH’s expert, an experienced deed restriction lawyer, opined

on the reasonable hours that should be expended in a deed restriction

case—even a contentious case. (MR Tab N at 98–104.) These hours paled in

comparison to those expended by Wohlrabe’s law firm, that was

inexperienced in handling deed restriction cases. This range of hours, using

the hourly rate of Wohlrabe’s law firm, totaled approximately $150,000

TAB 1 ($170,500 for the high end of the range, and approximately $150,000 or

less for the lower end of the range).

Second, BCH’s expert testified that Wohlrabe’s law firm should have

moved the case to conclusion earlier. In direct examination of BCH’s

expert, he went through the court’s docket and how Wohlrabe could have

reasonably obtained a summary judgment on the merits about a year

earlier, thereby avoiding exorbitant fees incurred by delaying. (MR Tab N at

79-80.) By eliminating the dragged-out litigation, the fees that could have

been avoided would reduce the fees recoverable to a little higher floor—to

$218,000.

To be clear, the jury did not go as low as these floors and award

$150,000-$218,000. But it could have. Conversely, the jury did not award

the fees Wohlrabe asked the jury to award: $579,954.45. Instead, the jury

awarded $290,000. Less than the ceiling, more than the floor. The jury was

within its discretion in doing so. More fundamentally, BCH’s arguing for

the floor of somewhere in the $150,000 range was proper given the

evidence. No expert or document had to explicitly say the number

$150,000 to properly argue it was a reasonable amount, given the

testimony cited above. Rather, it was a reasonable inference drawn from

TAB 1 the testimony presented. Further, the supplemental limine order on

amounts of fees addresses expert testimony, not jury argument.

But even assuming arguendo that this argument was improper and

violated the trial court’s limine orders, it was not properly preserved.

Admittedly, Wohlrabe’s counsel did object to this jury argument.

Predictably, the trial court sustained the objection for the favored party.

Notwithstanding, to be a proper basis for a new trial, Wohlrabe had to

request a curative instruction or move for a mistrial. See Bishop Abbey

Homes, Ltd. v. Hale, No. 05–14–01137–CV, 2015 WL 9167799, at *11 (Tex.

App.—Dallas 2015, pet. denied) (reasoning that error as to improper

argument must be preserved by proper objection and request for an

instruction or mistrial, unless the argument is incurable). Because

Wohlrabe did neither, error was not preserved, and the trial court could not

properly order a new trial on this ground unless the argument was

incurable. It is difficult to conceive how stating a dollar amount is

incurable. When the dollar amount is reasonably inferred from the

evidence, it certainly is not incurable (or improper, for that matter).

Simply put, granting a new trial based on suggesting $150,000 as a

floor for reasonable attorney’s fees is legally incorrect and does not justify

the proper grant of a new trial.

TAB 1 C. Other jury arguments by BCH were not improper, not objected to by Wohlrabe, and not incurable.

Improper jury argument can result in the later granting of a new trial

only when it is properly objected to or incurable. See Bishop Abbey Homes,

2015 WL 9167799, at *11. Almost always, to preserve error an objection

must be asserted because incurable jury argument is rare. Id. Cases finding

incurable harm “typically involved unsubstantiated attacks on the integrity

or veracity of a party or counsel, appeals to racial prejudice, or the like.”

Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex. 1968). Said another

way, an argument is only incurable when it is “so extreme that a ‘juror of

ordinary intelligence could have been persuaded by that argument to agree

to a verdict contrary to that to which he would have agreed but for such

argument.’” Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009)

(quoting Goforth v. Alvey, 271 S.W.2d 404, 404 (1954)).

In its order granting new trial, the trial court outlined multiple

instances in which BCH supposedly made improper and incurable jury

arguments. Only one of these—failing to segregate—was objected to by

Wohlrabe. For all others, error was not preserved unless the argument was

TAB 1 None of these arguments was incurable. In fact, BCH’s closing

argument was proper, and certainly a far cry from the sort of outrageous

and extreme argument that typically underlies a finding of incurability.

1. BCH’s argument that this case was a “money grab” was not improper, was not objected to by Wohlrabe, and was not incurable.

In its closing argument, counsel for BCH stated that “this case was

about a lawyer money grab from day one.” (MR Tab N at 186.) In its order

granting new trial, the court stated that this argument, among others, “had

the effect of striking at and harming the judicial system itself.” (MR Tab L

at 3; Apx. 1 at 3.) Given the nature of this case, this argument certainly was

not the kind of extreme argument that classifies as “incurable.”

Parties are permitted to make arguments based on inferences drawn

from the evidence presented at trial. Clark v. Bres, 217 S.W.3d 501, 510

(Tex. App.—Houston [14th Dist.] 2006, pet. dism’d). When doing so, there

is no rule against expressing even a highly unfavorable opinion of an

opposing party or witness. Id. (citing S.W. Greyhound Lines v. Dickson,

236 S.W.2d 115, 118 (Tex, 1951)) (holding that party’s argument that party

was a “thief, liar, and a fraud” was not improper argument).

In Bishop Abbey Homes, this Court held that counsel’s comment

during closing argument regarding “the depth and breadth of the lies” told

TAB 1 by a witness was not incurable error. Bishop Abbey Homes, Ltd., 2015 WL

9167799, at *13. In so holding, the Court reiterated the proposition that

trial counsel is given wide latitude in making jury arguments. Id. Because

evidence was presented at trial that the witness may have made false

representations, it was not improper for counsel to argue as to the witness’s

truthfulness during closing argument. Id. This Court further held that in

any event, any harm caused by the argument could have been cured by an

objection and instruction by the trial court. Id.

Here, the sole issue at trial was how much Wohlrabe should recover

in reasonable attorney’s fees. Testimony was presented that Wohlrabe

failed to segregate fees of the underlying declaratory judgment action from

the related tort action. (MR Tab N at 80–82.) There was also testimony that

Wohlrabe’s delay in filing a motion for summary judgment caused fees to

be driven up. (MR Tab N at 76–80.) Finally, there was testimony elicited as

to the suspect nature of the contingency fee arrangement between

Wohlrabe and her counsel—specifically that such an arrangement in a case

with no actual damages creates an incentive to drive up fees because they

are the only means of recovery for Wohlrabe’s law firm. (MR Tab N at 105–

07.)

TAB 1 As a result, BCH argued in closing argument that seeking

approximately $580,000 in fees constituted a “lawyer money grab.” (MR

Tab N at 186.) Given the evidence, this was not improper jury argument.

Rather, it was simply argument that admittedly was argumentative. See

Clark, 217 S.W.3d at 510 (“”[S]uch hyperbole for emphasis is an accepted

technique of oral advocacy and is part of our legal heritage and tradition.”).

But even if it was improper argument, Wohlrabe failed to object. (See

MR Tab N at 186–87.) Just as this Court noted in Bishop Abbey Homes,

“[a]ny error or harm occurred from counsel’s use of hyperbole in his

discussion could have been cured by an objection and instruction from the

trial court.” Hale, 2015 WL 9167799, at *13.

Likewise, BCH’s jury argument was not improper, or at most, curable

error. Consequently, Wohlrabe was required to properly preserve the error

by a timely objection and request for a curative instruction. Wohlrabe did

neither. Accordingly, BCH’s jury argument that the case was about a

“lawyer money grab” is a legally incorrect ground from which the trial court

could properly grant a new trial.

TAB 1 2. BCH’s argument questioning the formation of the homeowner’s association was not improper, was not objected to by Wohlrabe, and was not incurable.

The trial court also found that BCH’s jury argument “attacking the

creation of an association” by Wohlrabe—the client and attorney at the

client’s law firm—was incurable jury argument warranting a new trial. (MR

Tab L at 3; Apx. 1 at 3.) The following is the only mention of Wohlrabe

creating the homeowner’s association during BCH’s closing argument:

“They never needed the homeowner’s association. It wasn’t necessary. It

was created – – an entity to go sue them and didn’t need [Wohlrabe] to file

their lawsuit.” (MR Tab N at 187.)

This argument emphasized that the client was the attorney and drove

home the point that the attorney’s fees were unreasonably escalated. There

is nothing improper about this (brief) argument.

Further, the argument was neither objected to by Wohlrabe nor

incurable. That is, the argument was not so severe or outrageous that it

could have caused the jury to “agree to a verdict contrary to that to which

he would have agreed but for such argument.” Phillips v. Bramlett, 288

S.W.3d 876, 883 (Tex. 2009). Therefore, any prejudice incurred by

Wohlrabe—due to this brief, three-sentence-long argument—was curable by

an objection and instruction from the trial court to disregard. Because

TAB 1 Wohlrabe did not object or request such an instruction, much less move for

a mistrial, error was not preserved. And if error was not preserved, it could

not properly serve as a ground for new trial. The trial court clearly abused

its discretion in granting a new trial on this ground.

3. BCH’s argument regarding the suspect nature of the fee arrangement was not improper, was not objected to by Wohlrabe, and was not incurable.

The trial court’s order further noted that a new trial was appropriate

because BCH made arguments attacking the validity of Wohlrabe’s

contingency fee arrangement with its counsel. The trial court thus deemed

the following argument improper and incurable:

And you heard from Mr. Elrod. He told you on the stand the contingency fee agreements are typically used because somebody can’t pay. Ms. Elrod – – excuse me. Ms. Wohlrabe, according to Mr. Elrod, charges $300 an hour. So I think that she could pay that if she wanted to. Instead, they enter into a contingency fee agreement where all – – the only thing they’re going to collect is attorneys’ fees. So what are they going to do? If it settles day one, they get zero, nothing, nada. The only recovery is the longer the thing goes on and the bigger the attorneys’ fees they jet up, the bigger the award potentially. That’s all there is. That’s all they’re fighting about, attorneys’ fees.

(MR Tab N at 187.)

*** So the agreement is we discussed that contingency fee agreement. Ms. Wohlrabe is never going to have to pay any fees. The homeowners’ association is never going to have to pay any fees. And, again, the only way they recover any fees is if there

TAB 1 are fees to recover. So without creating fees, you’ve got no recovery. And, in fact, as both Mr. Elrod and Mr. Kitchens testified, in a contingency fee agreement, they typically share the recovery. They’re not sharing any recovery with Ms. Wohlrabe or the homeowners’ association with these fees. Now, we talked about budget. Mr. Elrod said, well, by the nature of a contingency fee agreement, he was going to have to be efficient. That was his testimony. I would agree with him in a normal contingency fee agreement where there are actual damages that you’re trying to recover and you’re going to share in those damages because the quicker you end it, the sooner you get the recovery. And as a lawyer, you don’t have to put in as much time in because the less time you put in, the bigger your recovery. Under this contingency fee agreement, the more time he puts in, the more potential recovery for him. It’s the opposite of a typical contingency fee agreement. This contingency fee agreement incentivizes the lawyer’s to spend money, which is the opposite of what Mr. Elrod told you.

(MR Tab N at 189–90.)

In addition to the incestuous relationship between attorney and

client, this argument is premised on two undisputed and relevant facts:

there were no actual damages sought, yet Wohlrabe sought almost

$580,000 in attorney’s fees from a contingency fee agreement. This

rendered the fee agreement an unprecedented one—a contingency fee

agreement where there is no shared recovery, and where recovery requires

churning up significant attorney’s fees. How is pointing this out to the jury

improper?

TAB 1 Also, this lengthy argument was not objected to by Wohlrabe. Thus, it

is waived and cannot be the proper basis for a new trial, unless the

argument was incurable. This argument certainly does not fit within the

category of argument that is incurable.

Rather, this argument was proper, and in any event was neither

objected to nor incurable. Accordingly, it was legally incorrect for the trial

court to grant a new trial on this ground.

4. BCH’s argument regarding failure to segregate cannot serve as a proper basis for a new trial.

There was one other portion of BCH’s jury argument cited by the trial

court in the order granting new trial. Specifically, BCH argued that

Wohlrabe failed to properly segregate recoverable fees from nonrecoverable

fees:

And Mr. Elrod told you, well, I took out $25,000. If you look at the fee statements, remember he had a cause of action, one whole cause of action that he dropped, he couldn’t recover attorney’s fees on. And he’s saying, but that was only $25,000. If you look at the fee statements, you will see that they should have segregated hundreds of thousands of dollars related to that claim. They were going to – –

(MR Tab N at 190–91.)

TAB 1 Again, that there was no stated basis for the objection did not stop the

trial court from sustaining the objection. Further, the jury heard evidence

that segregation of recoverable fees from non-recoverable fees was required

and that these fees were not sufficiently segregated. (MR Tab N at 81.)

Therefore, argument asserting that the fees were not properly segregated

was proper.

But even if this argument was improper, it was curable. Thus,

Wohlrabe was required to object and, if sustained, seek a curative

instruction or move for a mistrial. Otherwise, error is not preserved to later

seek a new trial on this basis.

Wohlrabe did neither. Instead, Wohlrabe’s counsel merely objected,

stating no basis for the objection, then sat down once the objection was

sustained. Accordingly, any purported error as to this argument was

waived, and the trial court’s order granting new trial cannot be supported

on this ground.

D. The purported indiscretions by BCH in questions and argument cannot serve as the proper basis for a new trial, individually or cumulatively.

Not a single stated basis for granting a new trial was legally

supportable. Nor did Wohlrabe properly preserve any ground by requesting

a curative instruction or seeking a mistrial. Because none of the evidence or

TAB 1 argument was incurable, error was waived. More fundamentally, every

single stated basis in the order granting new trial was proper examination

or argument by BCH.

Yet Wohlrabe argues that individually and collectively, the stated

bases suffice for granting a new trial. There is no legal basis in Texas

jurisprudence for granting a new trial based on cumulative error when each

stated reason is not improper, much less preserved for later seeking a new

trial.

The stated bases for granting a new trial are not legally supportable,

individually or cumulatively. Therefore, the order granting new trial on

grounds of improper questioning and argument states legally invalid

reasons for granting a new trial.

III. There was factually sufficient evidence to support the jury’s award of attorney’s fees in the amount of $290,000.

The trial court seemed persuaded by three arguments from Wohlrabe

regarding the purported factual insufficiency of the amount awarded by the

jury. First, no expert uttered the number $290,000. Second, the only

specific number stated by an expert was $579,954.45. Third, jury argument

suggesting a floor as low as $150,000 was not supported by the evidence.

None of these arguments is a proper basis for a new trial.

TAB 1 The determination of reasonable attorney’s fees is a fact question and

“’the testimony of an interested witness, such as a party to the suit, though

not contradicted, does no more than raise a fact issue to be determined by

the jury.” Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010). There is an

exception to this rule: “where the testimony of an interested witness 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, it is taken as true, as a

matter of law.” Ragsdale v. Progressive Voters League, 801 S.W.2d 880,

882 (Tex. 1990).

In other words, when a party puts on evidence that contradicts the

fees sought by the plaintiff—whether by cross-examination of the plaintiff’s

expert or by presenting its own expert—the trier of fact is not bound to the

number provided by the plaintiff’s expert. Powell Elec. Systems, Inc. v.

Hewlett Packard Co., 356 S.W.3d 113, 128 (Tex. App.—Houston [1st Dist.]

no pet.).

A. It is of no consequence that the amount $290,000 was not uttered specifically by a witness.

In seeking a new trial, Wohlrabe argued that the “only evidence

submitted in the case concerning the amount of reasonable fees for the

services of Plaintiffs’ attorneys through trial was the evidence and

TAB 1 testimony submitted by Plaintiffs.” (See MR Tab J at 3-4.) In reasoning

further, the basis for this bold statement is simply that BCH’s expert did not

testify to a dollar amount.

But this is of no consequence. If this were the law, then attorney’s fees

could never be reduced solely on cross-examination of the expert testifying

to attorney’s fees—unless she gratuitously reduced the amount herself. This

is not the law. A party disputing attorney’s fees can put the reasonableness

of certain fees at issue solely based on cross-examination of the expert

seeking fees. See, e.g., Cullins v. Foster, 171 S.W.3d 521, 537-39 (Tex.

App.—Houston [14th Dist.] 2005, pet. denied) (rejecting that attorney’s

fees were established as a matter of law where the only witness to testify on

fees was cross-examined on segregation and other issues).

That is, of course, not what happened here, as BCH’s expert, Mr.

Kitchens, testified (1) what fees could have been avoided by seeking

summary judgment sooner and (2) what the fees would have been in a

usual and customary case based on his experience. Notwithstanding, cross-

examination of Wohlrabe’s expert, Mr. Elrod, alone would have allowed

reducing the fees, particularly since the jury is the sole judge of the

credibility of witnesses. See Cullins, 171 S.W.3d at 537-39.

TAB 1 Wohlrabe further argued in the trial court that because there is not

some reasoning that would support the actual dollar amount awarded by

the jury, it is not supported. But the case law belies this argument. See, e.g.,

Garcia v. Gomez, 319 S.W.3d 638, 641-42 (Tex. 2010); Powell, 356 S.W.3d

at 127-29.

A jury can award within a range of fees. This is precisely what the jury

did here, by either calculation of the suggested floor. Also, if there is

evidence from which the fees sought could be undercut, including solely

from cross-examination of the attorney seeking fees, the jury may do so.

See Powell, 356 S.W.3d at 127-29; Cullins, 171 S.W.3d at 537-39. Such

evidence was abundant here.

Simply put, the law does not require an amount be specifically uttered

to the jury for the jury to award that amount in attorney’s fees.

B. The attorney’s fees sought by Wohlrabe were contradicted.

That the fees were contradicted is most obviously shown by the

testimony of Mr. Kitchens, BCH’s expert. But the fees were also

contradicted by cross-examination of BCH’s expert.

For example, the jury heard abundant evidence from which it could

have (and apparently did) view with skepticism Wohlrabe’s exorbitant

claim for attorney’s fees. This included:

TAB 1 • The initial fee agreement noted that the clients (Wohlrabe and her Association) were being provided services from Wohlrabe pro bono, then suddenly the matter was converted to seek fees (MR Tab N at 71);

• The fee agreement to which it was converted, in an HOA deed restriction case with no actual damages, was a contingency fee case—something unheard of in an HOA deed restriction case (MR Tab N at 67-68);

• The redactions and failure to describe for the jury what research was performed specifically in the fee statements did not allow the jury to ascertain what portion of the fees should have been segregated as between recoverable and non-recoverable claims (MR Tab N at 122–23; MR Tab N at 84–88);

• The redactions and failure to describe for the jury what research was performed specifically in the fee statements did not allow the jury to determine the reasonableness of such entries and fees (Id.); and

• The client (Wohlrabe and the Association—of which she is the director and set up solely for this litigation) is the attorney, and attorney is the client.

This evidence undercut Wohlrabe’s claims for the exorbitant amount

of attorney’s fees sought. When combined with credibility issues for

Wohlrabe’s attorney’s fees’ expert, there is factually sufficient evidence

supporting the lower amount awarded by the jury.

The trial court instructed the jury in its charge that it was “the sole

judges of the credibility of the witnesses and the weight to be given their

testimony.” (MR Tab I at 1.) Apparently, the jury took this to heart in

TAB 1 awarding an amount lower than what Mr. Elrod told them he wanted and

deserved.

More specifically, Mr. Elrod presented with credibility issues. Mind

you, Mr. Elrod is a fine lawyer who has handled some very significant cases

of very significant value. He certainly testified extensively about his wins

and “notches on his belt.”

For the jury, though, the problem may have been that in his 38 years

of practicing law, this was only his second HOA case. (MR Tab M at 103.)

For all the experience Mr. Elrod has, he readily admitted that he has rarely

handled HOA cases (one other in his career), and does not specialize in this

area. (MR Tab M at 103.)

From this testimony, it is not a stretch for the jury to conclude his

lack of experience in these types of cases unnecessarily and unreasonably

drove up the fees. In fact, BCH argued this to the jury in closing arguments.

(MR Tab N at 191.) When combined with the testimony of BCH’s expert

Travis Kitchens—about how a typical case should be handled—this is likely

another reason the jury reduced the award.

Specifically, Mr. Kitchens testified on multiple occasions that the fees

sought by Wohlrabe were unreasonable. He also specified the facts and

evidence on which this was based.

TAB 1 For starters, Wohlrabe waited well over a year after obtaining a

temporary injunction to seek a permanent injunction (by summary

judgment). (MR Tab N at 76-80.) Mr. Kitchens testified that this delay

resulted in unnecessary fees from February 2014 (45 days after the

temporary injunction was granted on December 13, 2013) to February 2015

(when the first summary judgment and permanent injunction was granted).

(Id.) The fees in that time period—taken straight from Wohlrabe’s exhibit

summarizing the fees by month—total $361,836.50. (See MR Tab N at 79;

MR Tab O at 1–3.) When this amount is subtracted from the amount sought

by Plaintiffs, the modified total is $218,117.95.

This modified amount of $218,117.95 served as one floor for the

award of attorney’s fees. And under this calculation—firmly supported by

the evidence—the range of recoverable attorney’s fees (assuming proper

segregation) is $218,117.95-$579,954.45. The jury’s award of $290,000 is

squarely within this range.

But there was another alternative measure from which the jury could

have reduced fees. Mr. Kitchens testified that there is a typical and

reasonable manner in which to handle an HOA deed restriction case. (MR

Tab N at 99-104.) Mr. Kitchens testified that the law is not complex in these

cases. (MR Tab N at 84.)

TAB 1 He then explained, from his experience, the usual and customary

manner in which such cases are handled. (MR Tab N at 99-104.) He

detailed—task by task—the number of hours it should take to work up such

a case. (Id.) If the high end of his range for handling such a case is

calculated, it totals 620 hours. (Id.) Using Mr. Farlow (lead counsel) and

Ms. Wohlrabe’s hourly rate of $275, this totals $170,500. If the lower end of

the range was used, the figure would drop further—to approximately

$150,000. This amount of $150,000-$170,500 provides a second floor to

which the jury could have reduced fees. The jury awarded approximately

$120,000-$140,000 more than this floor in awarding $290,000.

Wohlrabe does not like the jury award. But there is factually sufficient

evidence to support an award of $290,000.

Given the battle of experts, cross-examination of Wohlrabe’s expert,

and other evidence regarding the exorbitant fees and incestuous

relationship between Wohlrabe as client and attorney/her law firm, the jury

award is not so contrary to the overwhelming weight of the evidence as to

be clearly wrong and unjust. Cullins v. Foster, 171 S.W.3d 521, 539 (Tex.

App.—Houston [14th Dist.] 2005, no pet.). Therefore, granting a new trial

based on the jury’s award of $290,000 in attorney’s fees is legally invalid.

TAB 1 CONCLUSION

In virtually every manner, the trial court played favorites and showed

preference for one side, all the while ignoring established legal principles.

This is particularly true for the jury trial on attorney’s fees. In doing so, the

trial court exacted on BCH unequal justice above the law.

The trial court severely impeded BCH’s ability to examine witnesses,

including sustaining objection after objection without Wohlrabe even

stating a basis. The court also found violations of limine orders which did

not even implicate the orders, much less were improper. Finally, the court

disallowed closing argument that was proper, and certainly not incurable

such that Wohlrabe could fail to object, request a curative instruction, or

seek a mistrial and still preserve error to later seek a new trial.

Notwithstanding, the jury heard the evidence/arguments and

rendered a verdict on attorney’s fees. There was factually sufficient

evidence to support the verdict.

Yet the trial court—again administering unequal justice above the

law—granted a new trial by an order listing trumped up charges of

indiscretions by BCH. None of these is a proper basis for a new trial, either

because the questions or arguments were not improper, or the error was

TAB 1 not preserved (including because the questions and arguments were not

incurable).

One could ask, what is the harm in conducting a new trial on

attorney’s fees? After all, it would be a short trial on attorney’s fees, then a

judgment entered from which the parties could appeal. The simple answer

is a new trial is not proper. There is no legal basis for the trial court

granting a new trial.

But beyond a second trial, what happens next? What if the second

jury awards $350,000 in attorney’s fees? Surely, Wohlrabe will seek a third

trial, and the trial court will undoubtedly grant it. What about if the jury

awards $400,000 at the third trial? Wohlrabe will then seek a fourth trial,

and the trial court will undoubtedly grant it. There are only two ends to to

this cycle: Wohlrabe finds a jury that is willing to simply rubber-stamp

attorney’s fees of $579,954.45 (or more for each re-trial), or this Court puts

an end to it here.

This Court should grant mandamus to correct the clear abuses of

discretion by the trial court. Specifically, the Court should reverse the order

granting new trial and render judgment on the jury verdict (or order the

trial court to do so).

TAB 1 PRAYER

Relators pray that this Fifth District Court of Appeals:

(1) grant mandamus relief by finding that the trial court clearly abused its discretion, and has left Relators without an adequate remedy on appeal, in granting Plaintiffs’ motion for new trial;

(2) reverse the trial court’s Order Granting New Trial and either enter judgment on the jury verdict or order the trial court to do so; and

(3) award such other relief to which Relator may be entitled.

Respectfully submitted,

THOMPSON, COE, COUSINS & IRONS, L.L.P.

By: /s/ Michael A. Yanof Michael A. Yanof State Bar No. 24003215 Thomas A. Culpepper State Bar No. 05215650 Cassie J. Dallas State Bar No. 24074105

700 North Pearl St., 25th Floor Dallas, Texas 75201 Telephone: (214) 871-8200 Facsimile: (214) 871-8209 E-Mail: myanof@thompsoncoe.com E-Mail: tculpepper@thompsoncoe.com

COUNSEL FOR RELATOR BCH DEVELOPMENT, LLC

TAB 1 CERTIFICATE OF SERVICE

I certify that on December 16, 2016, a true and correct copy of this Petition for Writ of Mandamus was served on the following parties by electronic service or certified mail, return receipt requested (depending on whether each is registered to receive electronic service):

Brian A. Farlow (trial counsel) Gruber Elrod Johansen Hail Shank, LLP, 1445 Ross Avenue Suite 2500 Dallas, Texas 75202 Telephone: (214) 855–6800 Attorneys for Real Parties in Interest

Hon. D’Metria Benson County Court at Law No. 1 George L. Allen, Sr. Courts Building 600 Commerce Street Suite 550 Dallas, TX 75202

/s/ Michael A. Yanof___________ Michael A. Yanof

TAB 1 CERTIFICATION PURSUANT TO TEX. R. APP. P. 52.3(j)

I certify that I have reviewed this Petition for Writ of Mandamus and concluded that every factual statement in the petition is supported by competent evidence included in the appendix and or record.

/s/ Michael A. Yanof Michael A. Yanof

TAB 1 COMPLIANCE WITH TEX. R. APP. P. 9.4(i)(2)(B)

This Petition for Writ of Mandamus contains 11,140 words, as calculated by Texas Rule of Appellate Procedure 9.4(i)(1).

TAB 1 INDEX TO APPENDIX TO PETITION FOR WRIT OF MANDAMUS

Certification Pursuant to Texas Rule of Appellate Procedure 52.3(k)

9/21/16 Order Granting Plaintiffs’ Motion for New Trial (MR Tab L) Tab 1

TAB 1 C E R T I F I C A T I O N PURSUANT TO T E X A S R U L E OF A P P E L L A T E P R O C E D U R E 52.3(k)

BEFORE ME, the undersigned authority, on this day personally appeared

Cassie J. Dallas, the undersigned Affiant, who being first duly sworn, did depose

and say the following:

"My name is Cassie J. Dallas. I am over the age of eighteen, of sound mind,

capable of making this Affidavit, and fully competent to testify to the matters stated

herein as appellate counsel for Relators in this Petition for Writ of Mandamus. I

have personal knowledge of the facts stated herein, and they are true and correct.

I certify that Appendix Tab l to this Petition for Writ of Mandamus is a true

and correct copy of the order signed by the trial court on which this Petition for Writ

of Mandamus is based." _ /)

S U B S C R I B E D AND S W O R N TO B E F O R E M E , on the \\J) ^ day of December, 2016, to certify which witness my hand and official seal.

Notary Public i n and for the State of Texas

TAB 1 Cause No. CC-13-05900-A

L A K E VIEW HEIGHTS ADDITION § PROPERTY OWNERS' ASSOCIATION § IN THE COUNTY COURT and BARBARA WOHLRABE § § Plaintiffs/Counter-Defendants, §

BCH DEVELOPMENT, L L C ; and § BLANCHARD HOMES, L L C § § § Defendants/Counter-Plaintiffs. § § v. § § AT LAW NO. 1 GORDON BRUCE, MONICA BRUCE, § GEORGE BUTLER, NEIL TURNER § L . ELAINE TRICOLI, CHRISTOPHER § STILLO, SANDY STILLO, CYNTHIA § SCHWEIZER, LINDA BONDS, § GEORGINA BRUNSON, BEN BRUNSON DANIEL CLARK, BARBARA WOHLRABE, HEIDI PETTIT, ROBERT RYAN PETTIT, ELISA JOHNSON, ^ C C - 1 3 -05900 - A JEREMY THOMPSON, JENNIFER VICK, CO NT TANNER VICK, EDWARD FAROW, ' ORDER - NEW TRIAL ,1163436 KATIE SKINNER, NATHAN SKINNER LISA READY, L E X READY, MARGARET ABRUSLEY, AMANDA G. SHORT, AND PETE PINEDA, JR.

Counter-Defendants DALLAS COUNTY, TEXAS

ORDER GRANTING PLAINTEFFS' MOTION FOR NEW TRIAL

Came on for consideration, Plaintiffs' Motion for Judgment Notwithstanding the Verdict

or, Alternatively, Motion for New Trial (the "Motion"). After considering the Motion and the

arguments of counsel, the Court finds that Plaintiffs' motion for new trial is with merit and

ORDER GRANTING PLAINTIFFS' MOTION FOR NEW TRIAL Page 1

TAB 1

TAB 1 should be granted.

Plaintiffs' motion for new trial is granted on the following grounds:

1. Due to Defendant BCH Development, LLC's failure to make sufficient pre-trial

expert disclosures as required under the Texas Rules of Civil Procedure, the Court made various

pre-trial rulings excluding and limiting certain expert evidence and testimony, as well as any

reference to such evidence and testimony. Specifically, the Court prohibited Defendant's

attorney-fee expert from presenting (i) evidence concerning any specific amount of attorney's

fees which Defendant's attorney-fee expert intended to testify was a reasonable amount of fees

for the services of Plaintiffs' attorneys in this matter, (ii) evidence concerning any specific

number of hours which Defendant's attorney fee expert intended to testify was a reasonable

number of hours for Plaintiffs' attorneys to have expended in representing the Plaintiffs in this

matter, (iii) evidence concerning the reasonable fees that are charged in Dallas County, Texas,

(iv) evidence concerning any specific dollar amount of attorney's fees, or any specific number of

attorney hours, which should have been segregated from the fees requested by Plaintiffs, and (v)

evidence concerning any percentage to apply to Plaintiffs' attorney fee evidence in order to

arrive at a reasonable attorney's fee in the case.

2. Despite and in contravention of the Court's rulings, Defendant attempted to place

such excluded matters before the jury both through the testimony o f Defendant's expert witness

and through argument to the jury, including (i) testimony concerning the number of hours

Defendant's expert believed would be reasonable for prosecution of a deed restriction case like

this one, and (ii) jury argument that $150,000 was a reasonable attorney's fee through trial and

could be calculated by subtracting a certain amount of fees from the $579,954.45 fees sought by

Plaintiffs.

ORDER GRANTING PLAINTIFFS' MOTION FOR NEW TRIAL Page 2

TAB 1 3. Defendant made several attempts to present testimony and argument to the jury

that Plaintiffs' attorneys' use of "block billing" in their attorney fee statements was somehow

improper or impermissible under the law and that as a result Plaintiffs should not recover some

portion of their attorney's fees. Despite the Court having granted Plaintiffs' request for a

supplemental limine order excluding any testimony, evidence or argument that any law requires

a party seeking to recover attorney's fees to prepare attorney fee statements which utilize "task

billing," or that any law prohibits "block billing" (and the Court granting Plaintiffs' request for a

curative instruction to the jury,) Defendant proceeded to ignore the supplemental limine order by

(i) posing questions to its expert witness which improperly touched upon the block billing issue,

and (ii) arguing to the jury that Plaintiffs' attorney's fees should be reduced due to the fact that

their attorneys' fee statements did not include itemizations of the time spent on each task.

4. Defendant engaged in improper jury argument which was inflammatory,

contained unsupported, extreme and personal attacks on the Plaintiffs and their attorneys, was

unsupported by the evidence, was unsupported by the law or was contrary to the law, and which

was calculated to cause prejudice to the Plaintiffs and had the effect of striking at and harming

the judicial system itself, including:

(i) argument to the jury that "this case was about a lawyer money grab from day

one";

(ii) argument to the jury attacking the creation o f an association by certain property

owners in the Lakeview Heights Addition and the filing of this suit by the

association on their behalf, even though Texas law expressly permits the creation

of such an association and permits the filing of suit by a property owner's

designated representative, and Defendant introduced no evidence that the filing of

ORDER GRANTING PLAINTIFFS' MOTION FOR NEW TRIAL Page 3

TAB 1 I

suit by the Association rather than by each o f its individual members

unreasonably or unnecessarily increased the Plaintiffs' legal fees;

(iii) argument to the jury attacking the Plaintiffs' use of a contingency fee arrangement

with their counsel by making the legally unsupported assertion that contingency

fee arrangements are only to be used by people who can't afford to pay an

attorney, as well as the factually unsupported argument that Plaintiff Wohlrabe

could pay for legal services i f she wanted to;

(iv) argument to the jury attacking the propriety of Plaintiffs' contingency fee

arrangement by making the assertions that under the agreement the Plaintiffs are

never going to have to pay any fees and that the only way for them to obtain a

recovery is to create fees;

(v) factually unsupported argument to the jury that under the Plaintiffs' contingency

fee arrangement the only thing Plaintiffs could collect would be their attorney's

fees, that the contingency fee agreements incentivized the attorneys to keep the

law suit going as long as possible so they could "jet up" or "gin up" the attorney's

fees and obtain a bigger attorney fee award, and that the attorney's fees were all

that the Plaintiffs were fighting about, even though the gravamen of Plaintiffs'

petition was their request for temporary and permanent injunctive relief;

(vi) factually and legally unsupported argument to the jury that under the Plaintiffs'

contingency fee arrangement the more time Plaintiffs' counsel puts in the case the

more he recovers, and that this is the opposite of a typical contingency agreement;

(vii) factually unsupported argument to the jury that Plaintiffs should have segregated

hundreds of thousands of dollars related to a cause of action which was dropped

ORDER GRANTING PLAINTIFFS' MOTION FOR NEW TRIAL Page 4

TAB 1 by Plaintiffs after it had been pending for years;

5. The afore-listed jury argument was designed to cause prejudice and harm to

Plaintiffs, struck at and damaged the integrity of the judicial system itself, and was incurable.

Defendant's repeated attacks on Plaintiffs and their counsel as having filed this suit simply as a

"money grab" or an attempt to create attorney's fees or "jet up" or "gin up" attorney's fees,

rather than for the legal and legitimate purpose of enforcing a neighborhood's deed restrictions,

was not based on any evidence and was extreme, unsupported, and designed to turn the jury

against Plaintiffs and their counsel. Defendant's repeated attacks on Plaintiffs' use of a

contingency fee arrangement with their counsel were unsupported by the law and were advanced

for the purpose of attempting to characterize Plaintiffs and their counsel as greedy and as having

pursued this legal action solely in order to extract money from Defendant.

6. The cumulative effect of Defendant's violations of the Court's rulings, as outlined

above, and o f Defendant's extreme, unsupported, and improper jury argument, as outlined above,

might reasonably have resulted in, and probably did result in, an improper verdict and harm to

the Plaintiffs which was incurable.

7. In addition, there was insufficient evidence to support the jury's finding that

$290,000 is a reasonable attorney's fee for Plaintiffs through trial of the case and the finding is

against the overwhelming weight o f the evidence. There was no expert testimony or other

evidence that $290,000 was a reasonable attorney's fee through trial in this case and there was

insufficient evidence to support any figure or range of figures that the jury might have used to

determine that a reasonable attorney's fee through trial in this case was $290,000. The only

dollar figure presented to the jury as to Plaintiffs' reasonable attorney's fees through trial was the

$579,954.45 figure presented by Plaintiffs. There was insufficient evidence to support the

ORDER GRANTING PLAINTIFFS' MOTION FOR NEW TRIAL Page 5

TAB 1 $150,000 figure that Defendant sought to present to the jury because (i) there was no testimony

or other evidence to support the $150,000 figure, and (ii) Defendant's expert's testimony

concerning legal fees which might not have been incurred had Plaintiffs filed their summary

judgment motion four months earlier was incomplete and insufficient to support Defendant's

$150,000 figure.

8. For the foregoing reasons, the Court concludes that good cause exists for a new

trial of Plaintiffs' claim for attorney's fees through the trial of the case.

THEREFORE, it is ORDERED, ADJUDGED AND DECREED that Plaintiffs' Motion

for New Trial is GRANTED.

Judge Presiding

ORDER GRANTING PLAINTIFFS' MOTION FOR NEW TRIAL Page 6

TAB 1 CONDITIONALLY GRANT; and Opinion Filed August 15, 2017.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-01481-CV

IN RE BCH DEVELOPMENT, LLC, Relator

On Appeal from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-13-05900-A

OPINION Before Justices Evans, Brown, and Schenck Opinion by Justice Schenck After the trial court granted real parties in interest’s motion for summary judgment in this

deed restriction case, the matter proceeded to a jury trial on attorney’s fees pursuant to section

5.006 of the property code. TEX. PROP. CODE ANN. § 5.006 (West 2014). The jury returned a

verdict awarding real parties in interest $290,000 in attorney’s fees, rather than the full

$579,954.45 they sought to recover. The trial court granted real parties in interest’s request for a

new trial.

Relator, BCH Development, LLC (“BCH”), filed a petition for writ of mandamus urging

that we direct the trial court to vacate its new trial order because none of the specified reasons for

ordering a new trial legally support relief in the form of a new trial. We agree and therefore

conditionally grant mandamus relief and direct the trial court to vacate the September 21, 2016

Order Granting New Trial and enter a judgment on the jury verdict.

TAB 2 BACKGROUND

This case arises from BCH’s attempt to construct a home with a habitable attic in the

Lakeview Heights Addition. Barbara Wohlrabe and Lakeview Heights Addition Property

Owners’ Association (collectively, the “Association”) brought suit against BCH and Blanchard

Homes, LLC asserting they were breaching and violating deed restrictions and seeking to enjoin

them from constructing a dwelling that has more than one above-ground level or floor of living

space, and from constructing a dwelling that has a habitable attic. The Association also asserted

a claim for tortious interference, which it later abandoned. After the trial court granted the

Association’s motion for summary judgment and permanently enjoined BCH from building a

dwelling in the neighborhood in excess of one story and with a habitable attic, the Association

nonsuited its claims against Blanchard Homes, LLC.

At trial, the only remaining issue was an award of attorney’s fees under the property

code. One of the Association’s attorneys testified as the expert for the Association. He opined

that fees in the amount of $579,954.45 were reasonable in pursuing the breach and violation of

the deed restrictions claims in light of the extensive work that had been put into the case. On

cross examination, he testified that the jury in a different, less complicated deed restriction case

awarded $250,000 based on his testimony in that case. BCH’s expert countered that the

Association unnecessarily delayed seeking a summary judgment for a period of a year. The

record—the Association’s exhibit of its attorney’s fees—shows that fees of approximately

$361,000 accrued during the delay. 1 BCH’s expert, who has handled hundreds of property

owners’ association cases, also testified as to what would be the reasonable hours expended

during various phases of a deed restriction case. They totaled 500 to 600 hours. The jury

1 BCH points out that the attorney’s fees sought by the Association, in the amount of $579,954, less the fees incurred during this delay in moving for summary judgment, in the amount of $361,000, equals approximately $218,000. The Association responds that these amounts and this calculation were never mentioned to the jury.

–2– TAB 2 returned a verdict awarding the Association $290,000. The Association moved for judgment

notwithstanding the verdict or for a new trial. The trial court granted the Association’s motion

for new trial. This original proceeding followed.

STANDARD FOR GRANTING MANDAMUS—ORDER GRANTING NEW TRIAL

A trial court’s order granting a new trial after a jury trial is subject to mandamus review.

In re Zimmer, Inc., 451 S.W.3d 893, 898 (Tex. App.—Dallas 2014, orig. proceeding) (citing In

re United Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding)). A new

trial order must initially satisfy two “facial requirements.” In re Bent, 487 S.W.3d 170, 173

(Tex. 2016) (orig. proceeding). One, the order must state a legally appropriate reason for the

new trial. Id. Two, the stated reason must be specific enough to indicate that the trial court did

not simply parrot a pro forma template but rather derived the articulated reason from the case’s

particular facts and circumstances. Id. The order must satisfy both requirements, or it reflects an

abuse of discretion correctable by mandamus. See United Scaffolding, 377 S.W.3d at 688–89.

Further, even if a new trial order meets the facial requirements, a relator can show an

abuse of discretion and an entitlement to mandamus relief if, after a merits review, the record

does not support the trial court’s rationale for ordering a new trial. Bent, 487 S.W.3d at 173; In

re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 749 (Tex. 2013) (orig. proceeding).

DISCUSSION

A. Were the trial court’s reasons for ordering a new trial both sufficiently specific and legally appropriate?

The order in this case cites (1) BCH’s violation of limine orders limiting the scope of

BCH’s attorney fee expert’s testimony, 2 (2) BCH’s improper jury argument attacking the

2 The Order Granting Plaintiffs’ Motion for New Trial identifies BCH’s expert’s testimony concerning the number of hours he believed would be reasonable for prosecution of a deed restriction case like this one, and BCH’s attempts to present testimony that plaintiffs’ attorneys’ “block billing” statements were somehow improper or impermissible, as violations of limine orders.

–3– TAB 2 Association and its attorneys, criticizing the use of a contingency fee agreement and lack of

segregation of fees, and stating that $150,000 was a reasonable fee through trial, and (3) factual

and legal insufficiency of the evidence to support the jury’s award of $290,000 in attorney’s fees,

as its bases for granting a new trial. Violation of limine orders, improper jury argument, and

insufficiency of the evidence, if established, can serve as legally proper reasons for granting a

new trial. See In re United Servs. Auto. Ass’n¸ 446 S.W.3d 162, 174 (Tex. App.—Houston [1st

Dist.] 2014, orig. proceeding) (the violation of a limine order can serve as a basis for a new trial

order), mand. denied, 487 S.W.3d 170 (Tex. 2016); Living Ctrs. of Tex., Inc. v. Penalver, 256

S.W.3d 678, 681–82 (Tex. 2008) (holding that improper incurable jury argument is a legally

appropriate ground for a new trial); Zimmer, 451 S.W.3d at 898 (noting that factual insufficiency

of the evidence to support the jury’s verdict, if established, is a legally proper reason for granting

a new trial). Thus, the order complies with the first facial requirement. Toyota, 407 S.W.3d at

756–57.

The trial court’s order also satisfies the second requirement of specificity. It recites the

specific facts and circumstances of the case that led the trial judge to reach her conclusions. The

order is specific enough both to permit BCH to attack it and to enable our review. See Zimmer,

451 S.W.3d at 898.

B. Were the trial court’s reasons for granting a new trial valid and correct?

Simply articulating understandable, reasonably specific, and legally appropriate reasons

is not enough to sustain a new trial order; the reasons must be valid and correct. Id. (citing

Toyota, 407 S.W.3d at 759). We must conduct a careful “merits review” of the record. See

Toyota, 407 S.W.3d at 759. In a mandamus proceeding, we may not substitute our judgment for

that of the trial court. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding). But

neither may the trial court substitute its judgment for that of the jury in granting a new trial.

–4– TAB 2 re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 212 (Tex. 2009) (orig. proceeding);

Toyota, 407 S.W.3d at 758 (“If . . . a trial court’s articulated reasons are not supported by the

underlying record, the new trial order cannot stand.”). Thus, using a factual sufficiency standard,

we will engage in a review of the entire trial record to determine whether it supports the trial

court’s reasons for granting a new trial. See Bent, 487 S.W.3d at 180. If the record does not

support the trial court’s stated reasons, then the trial court will have abused its discretion in

granting a new trial. See Toyota, 407 S.W.3d at 761 (holding the trial court abused its discretion

by granting a new trial because the record did not support the articulated reason).

1. Limine Orders and Jury Arguments

As to the trial court’s assertion that BCH’s alleged violations of motion-in-limine orders

are bases for granting a new trial, we note that the purpose of a motion in limine is to prevent a

party from asking prejudicial questions and introducing evidence in front of the jury without first

asking the court’s permission. See Weidner v. Sanchez, 14 S.W.3d 353, 363 (Tex. App.—

Houston [14th Dist.] 2000, no pet.). A motion in limine itself preserves nothing for review. In

re R.V. Jr., 977 S.W.2d 777, 780 (Tex. App.—Fort Worth 1998, no pet.). The complaining party

must immediately object and also request the trial court to instruct the jury to disregard the

evidence introduced in violation of a limine order. State Bar of Tex. v. Evans, 774 S.W.2d 656,

658 n.6 (Tex. 1989) (per curiam); Weidner, 14 S.W.3d at 363.

Before BCH called its expert witness to testify, the Association moved to exclude certain

testimony of this witness, arguing BCH failed to disclose certain expert opinions the Association

believed BCH would attempt to elicit based on BCH’s opening statement. In response, the trial

court ruled that BCH’s expert would not be allowed to opine as to (1) the appropriate amount of

fees that should be segregated, (2) the reasonable hourly rates in Dallas County (BCH conceded

its expert would not be challenging the Association’s expert’s opinion on reasonable rates), and

–5– TAB 2 (3) the specific amount that should have been charged.

The trial court considered BCH’s attempt to present testimony concerning the number of

hours that would be reasonable for prosecution of a deed restriction case like this one, and

attempt to present testimony that the Association’s attorneys’ “block billing” statements were

somehow improper, to violate its limine orders. A review of the challenged comments reveals,

however, that they did not reach into any of the topics precluded by the motion and the resulting

order.

As for BCH’s expert’s testimony concerning a reasonable number of hours for

prosecution of a case like this, in connection with the Association’s request that BCH’s expert be

precluded from testifying on certain matters, the trial court affirmatively permitted that

testimony, indicating that he could “say that, in his experience, someone working on a summary

judgment of the type that was permitted or presented in this case would have been 20 hours not

60 hours.” The court went on to clarify, after BCH’s attorney asked whether he could ask the

expert how many billable hours it should take to drive this type of case to resolution based upon

his experience, that “he can testify as to the hours, but not to the amounts.” Thus, BCH’s

expert’s testimony concerning billable hours did not violate a limine order and cannot serve as a

legally proper reason for granting a new trial.

As to testimony concerning “block billing,” it also was not subject to a limine order. In

fact, BCH’s attorney elicited testimony concerning block billing from the Association’s expert

witness on cross examination without objection.3 In addition, the Association’s own attorney

3 The following exchange occurred between BCH’s counsel and the Association’s expert witness:

Q. And when you bill in this manner, sir, is that commonly required [sic] to as block billing? A. It’s called block billing. Q. And is it your understanding that Courts disfavor block billing? A. Absolutely not. In fact, I’ve testified in attorneys’ fees cases where we don't even introduce the fee statements. It’s not required. Q. And so is it your testimony that Courts do not -- or do you have an opinion -- let me strike that. Have you read any cases about block billing and whether the Court -- whether Courts favor block billing?

–6– TAB 2 questioned its expert on block billing. 4 The trial court did not enter a limine order concerning

testimony, evidence, or argument as to whether task billing was necessary until after the

Association’s expert had already testified. Thus, testimony elicited from the Association’s

expert concerning “block billing” did not violate a limine order and cannot serve as a legally

proper reason for granting a new trial.

When BCH’s counsel attempted to question BCH’s expert as to what block billing does

to the bill, the Association objected and the court sustained the objection before the basis for the

objection could be stated. BCH’s expert did not answer the question. Thereafter, the trial court

instructed the jury as follows:

Ladies and gentlemen of the jury, I just want to give you an instruction that – or an admonition to follow. You have previously heard examination questions, arguments, or testimony which may have caused you to believe that Texas law prohibits block billing in an attorneys’ fee statement. That is an incorrect statement of Texas law. You are to disregard questions, arguments, or testimony with regard to the issue of block billing.

A. It depends on what Court you’re in. If you’re in a bankruptcy court, you cannot block bill. Q. Okay. Have you read any cases from the Fifth Circuit about what they think about block billing? A. It depends if you’re talking about a bankruptcy case. If you’re talking about a bankruptcy case, the Fifth Circuit says you can’t block bill in bankruptcy cases because that’s a debtor, and the bankruptcy courts won’t let you block bill. Q. What about non-bankruptcy cases, sir? A. In non-bankruptcy cases, no, I’m not familiar with any prohibition by the Fifth Circuit in block billing to get attorneys’ fees. If you have the case, let me see it please. .... Q. So, at least as far as you’re concerned, there is -- block billing is fine, true? A. In getting recovery of attorneys’ fees in Texas under 5.006, block billing is fine because you don’t even have to introduce your fee statements. Q. Have you ever done any research about block billing yourself? Have you done any? A. Yes. Q. Okay. You have done research on block billing? A. In bankruptcy cases, yes. Q. In non-bankruptcy cases, sir. I’m talking about civil cases that aren’t bankruptcy cases. A. Mr. Culpepper, I’m pretty much aware of the cases that have to deal with proving up attorneys’ fees in state court in Texas, and I’m not familiar with a case that says you cannot block bill and recover attorneys’ fees. If you have one, I’d be happy to read it. I’m not familiar with a case that prohibits block billing. 4 The following exchange took place between the Association’s counsel and the Association’s expert:

Q. Now there was a great deal of talk about-- he mentioned block billing. And would the other type of billing where you put the amount down for each individual task be called task billing? A. It’s task billing. Q. And, [Association’s expert], is it your opinion -- are you aware of any opinion which prohibits the recovery of attorneys’ fees based on block billing? A. Absolutely not. That [sic] why he -- if he’s got one, I wanted Mr. Culpepper to show me because I’m not aware of one. Q. Have -- now while you might be able to task bill in a case, is there anything wrong with block billing? A. Absolutely not. That’s why I said for 12 percent of our clients, we bill block bill. For 10 percent, we task bill. It’s a specific request by client. If you’re doing bankruptcy work, the bankruptcy -- if you’re doing litigation for a debtor in a bankruptcy case, then the bankruptcy court requires you to do task billing, not block billing.

–7– TAB 2 When a trial court instructs the jury to disregard evidence offered in violation of a motion

in limine, we may review that evidence to determine whether an instruction to disregard was

adequate to cure its admission. In re City of Houston, 418 S.W.3d 388, 397 (Tex. App.—

Houston [1st Dist.] 2013, orig. proceeding). “Violations of an order on a motion in limine are

incurable if instructions to the jury would not eliminate the danger of prejudice.” Dove v. Dir.,

State Emps. Workers’ Comp. Div., 857 S.W.2d 577, 580 (Tex. App.—Houston [1st Dist.] 1993,

writ denied) (citing Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex. 1962)). We presume that jurors

follow the instructions they are given. Taylor v. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex.

App.—Houston [14th Dist.] 2004, pet. denied). In this case, there is no reason to conclude that

the instruction actually failed to cure the effect of an unanswered question concerning block

billing. Thus, to the extent the trial court granted a new trial on that basis, it cannot serve as a

As to the trial court’s assertion that BCH engaged in improper jury argument during

closing argument, we note that a litigant is entitled to have his counsel argue the facts of the case

to the jury. Clark v. Bres, 217 S.W.3d 501, 510 (Tex. App.—Houston [14th Dist.] 2006, pet.

denied) (citing Texas Sand Co. v. Shield, 381 S.W.2d 48, 57–58 (Tex. 1964)). Reasonable

inferences and deductions from the evidence are permissible as well during closing argument.

PopCap Games, Inc. v. MumboJumbo, L.L.C., 350 S.W.3d 699, 721 (Tex. App.—Dallas 2011,

pet. denied). Hyperbole is also generally a permissible rhetorical technique in closing argument.

Id. Counsel may comment on the credibility of witnesses. See id. at 722 (arguing that jury

should accept one witness’s opinion instead of another’s was not improper). Trial counsel

should be given wide latitude in arguing the evidence and the reasonable inferences from the

evidence to the jury. Clark, 217 S.W.3d at 510.

–8– TAB 2 A complaint about improper, but curable, jury argument is waived by the failure to object

at trial. Standard Fire Ins. v. Reese, 584 S.W.2d 835, 841 (Tex. 1979). A complaint of incurable

jury argument, however, may be asserted and preserved in a motion for new trial, even in the

absence of a timely objection during trial. TEX. R. CIV. P. 324(b)(5); Phillips v. Bramlett, 288

S.W.3d 876, 883 (Tex. 2009). Instances of incurable improper jury arguments are rare. See

Penalver, 256 S.W.3d at 680. Examples of incurable improper jury arguments can include

appeals to racial prejudice, unsupported accusations of witness tampering by the opposing party,

and unsupported, extreme, and personal attacks on opposing parties and witnesses. Id. at

681; see also Cottman Transmission Sys., L.L.C. v. FVLR Enters., L.L.C., 295 S.W.3d 372, 380

(Tex. App.—Dallas 2009, pet. denied) (recognizing that incurable argument can include

unsupported charges of perjury and the use of inflammatory epithets such as “liar” and “cheat”).

Of the closing argument statements the trial court considered to be improper, the

Association objected to only BCH’s attorney’s statements that $150,000 was a reasonable fee in

this case and “You can’t – the other expert can’t segregate.” The Fourteenth Court of Appeals

decided that trial error that is not preserved for appellate review is not available as proper

grounds for a new trial. In re Athans, 478 S.W.3d 128, 139 (Tex. App.—Houston [14th Dist.]

2015) (orig. proceeding). We agree. We conclude the unobjected to arguments the trial court

considered to be attacks against the Association and its attorneys and critical of the use of a

contingency fee agreement were not preserved and did not amount to fundamental error. Thus,

they cannot serve as legally proper reasons for granting a new trial.

As to the jury argument that $150,000 was a reasonable attorney’s fee through trial, in

accordance with the trial court’s directive, BCH’s expert testified concerning reasonable billable

hours in a case like this. They totaled 500 to 600 hours. The evidence established Wohlrabe,

who is an attorney with the firm representing the Association, charges $300 per hour for her

–9– TAB 2 professional services. Thus, BCH’s comment that a reasonable fee was $150,000 was a

reasonable inference or deduction from the evidence, and did not violate the trial court’s limine

order concerning a specific amount of fees, because the order was directed to BCH’s expert’s

testimony, not to BCH’s attorney and argument. Thus, the argument was not improper.

As to argument concerning segregation of fees, BCH’s counsel stated:

And [the Association’s expert] told you, well, I took out $25,000. If you look at the fee statements, remember he had a cause of action for years, one whole cause of action that he dropped, he couldn’t recover attorney’s fees on. And he’s saying, but that was only $25,000. If you look at the fee statements, you will see that they should have segregated hundreds of thousands of dollars related to that claim.

Counsel for the Association objected to this statement without stating the grounds, and the trial

court sustained the objection. The evidence established that segregation of recoverable fees from

non-recoverable fees was required in this case. The jury heard evidence that the fees were not

sufficiently segregated, that the fees related to the tortious interference with contract claim were

not recoverable, and that the tortious interference with contract claim was dismissed after it had

been pending for years. Thus, BCH’s counsel’s comments about the $25,000 segregation and

the claim upon which the Association could not recover were comments on the facts and

reasonable inferences therefrom. BCH’s counsel referred the jury to the fee statements, which

were in evidence, to decide the issue of segregation itself and the comment about hundreds of

thousands of dollars was hyperbole. The arguments were, thus, not improper.

Accordingly, the arguments cited as reasons for granting a new trial are not correct or

legally appropriate bases upon which to order a new trial.

2. Sufficiency of the Evidence

As to the sufficiency of the evidence to support the jury’s verdict, the trial court stated

there was no expert testimony or other evidence that $290,000 was a reasonable attorney’s fee in

this case and there was insufficient evidence to support any figure or range of figures that the

–10– TAB 2 jury might have used to determine that a reasonable attorney’s fee in this case was $290,000.

The court continued by stating the only dollar figure presented to the jury as to the Association’s

reasonable attorney’s fees was the $579,954.45 figure presented by the Association. We

disagree.

When a party puts on evidence that contradicts the fees sought by the plaintiff—whether

by cross examination of the plaintiff’s expert or by presenting its own expert—the trier of fact is

not bound to the number provided by the plaintiff’s expert. Powell Elec. Sys., Inc. v. Hewlett

Packard Co., 356 S.W.3d 113, 128 (Tex. App.—Houston [1st Dist.] 2011, no pet.). While the

Association’s expert opined fees in the amount of $579,954.24 were reasonable and necessary,

BCH’s expert testified as to fees that could have been avoided by seeking summary judgment

earlier in the case, and opined that a case like this one should have required 500 to 600 hours of

attorney time. The evidence also established Wohlrabe’s billable rate is $300 per hour. And 500

hours at $300 per hour equates to a minimum of $150,000, as noted previously. During closing

argument, the trial court permitted, over objection, argument that “had [the Association] chosen

to file [their motions for summary judgment] early on . . . they could have cut out a tremendous

amount of fees they incurred after March of 2014 . . . . They said they incurred $429,381, if you

add it up.” Subtracting this sum from the claimed fees of approximately $579,000, leaves

approximately $150,000.

Thus, the evidence showed a range of fees from $150,000 to slightly over $579,000. The

jury awarded the Association $290,000, well within the range supported by the evidence. Under

these circumstances, the evidence was sufficient to support the jury’s award of $290,000. See

Garden Ridge, L.P. v. Clear Lake Ctr., L.P., 504 S.W.3d 428, 445 (Tex. App.—Houston [14th

Dist.] 2016, no pet.); Ropa Expl. Corp. v. Barash Energy, Ltd., No. 02–11–00258–CV, 2013 WL

2631164, at *12 (Tex. App.—Fort Worth June 13, 2013, pet. denied) (mem. op.) (affirming

–11– TAB 2 jury’s award of attorney’s fees despite the lack of documentary evidence supporting the award

when the award was within the range of evidence presented at trial); Pitts v. Dallas Cty. Bail

Bond Bd., 23 S.W.3d 407, 415 (Tex. App.—Amarillo 2000, pet. denied) (affirming trial court’s

award of attorney’s fees because the amount was within the range supported by the evidence);

see also, e.g., Sw. Energy Prod. Co. v. Berry–Helfand, 491 S.W.3d 699, 713 (Tex. 2016) (“The

jury generally has discretion to award damages within the range of evidence presented at trial.”).

Thus, to the extent the trial court granted a new trial based on factual insufficiency of the

evidence to support the jury’s award of $290,000 in attorney’s fees, that reason is not correct or

legally appropriate, and the trial court abused its discretion in granting a new trial for that reason.

To the extent the trial court granted a new trial on the basis of cumulative error, that basis

is not a reason that is legally appropriate. When there are no errors, we reject cumulative error

arguments. Caro v. Sharp, No. 03-02-00108-CV, 2003 WL 21354602, at *8 (Tex. App.—Austin

June 12, 2003, pet. denied) (mem. op.).

The trial court abused its discretion by granting a new trial based on grounds that were

not legally appropriate. Therefore, we conditionally grant BCH’s petition for writ of mandamus.

A writ will issue only if the trial court fails to vacate its September 21, 2016 Order Granting New

Trial and fails to enter a judgment on the jury’s verdict.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

161481F.P05

–12– TAB 2