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

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