James D. Anderton, Individually as the Trustee of the Jimmie W. Anderton and Frances E. Anderton Revocable Living Trust Agreement v. Jennifer Green

• Court: Court of Appeals of Texas
• Decided: July 23, 2018
• Docket: 05-17-00024-CV
• Status: Published

Opinion

CONCUR; and Opinion Filed July 23, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00024-CV

JAMES D. ANDERTON, INDIVIDUALLY AND AS THE TRUSTEE OF THE JIMMIE W. ANDERTON AND FRANCES E. ANDERTON REVOCABLE LIVING TRUST AGREEMENT, Appellants V. JENNIFER GREEN, Appellee

On Appeal from the 354th District Court Hunt County, Texas Trial Court Cause No. 79011

CONCURRING OPINION Before Chief Justice Wright, Justice Lang-Miers, and Justice Whitehill Concurring Opinion by Justice Whitehill I agree with and join in the court’s opinion as correctly decided based on the issues raised

and the record before us. I write separately to address only the preservation issue discussed in

footnote four of that opinion.

In my view, appellants’ complaint about whether Jennifer failed to segregate her

recoverable attorneys’ fees is substantively a complaint about the sufficiency of the evidence to

support the amount awarded. See Tony Gullo Motors I, L.P. v. Chapa, 22 S.W.3d 299, 314 (Tex.

2006) (“Unsegregated attorney’s fees for the entire case are some evidence of what the segregated

amount should be.”) (footnote omitted). As such, that issue could have been raised for the first

time on appeal from this nonjury case. TEX. R. APP. P. 33.1(d). Therefore, future appellate courts should not need to address the error preservation issues

footnote four discusses when resolving whether an attorneys’ fees claimant properly segregated

recoverable attorneys’ fees from non-recoverable attorneys’ fees when a trial court tries that issue.

/Bill Whitehill/ BILL WHITEHILL JUSTICE

170024CF.P05

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