NUMBER 13-19-00246-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BARRERA, SANCHEZ & ASSOCIATES, P.C. Appellant,
v.
LIZETTE RODRIGUEZ, Appellee.
On appeal from the County Court at Law No. 4
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Hinojosa
By two issues, appellant Barrera, Sanchez & Associates, P.C. (Barrera) argues
that the trial court abused its discretion when it: (1) granted appellee Lizette Rodriguez’s
motion for rehearing and (2) subsequently reduced its award of attorney’s fees. We affirm.
I. BACKGROUND
Rodriguez sought the legal services of Barrera to represent her in divorce
proceedings against her former husband Jorge Alberto Rodriguez. On August 27, 2015,
Rodriguez signed a Client Services Agreement (Agreement) with Barrera wherein she
agreed to pay the law firm a retainer of $2,500 and attorney billable rates of $250 per
hour. The Agreement further provided that, “at such time and in the event it becomes
foreseeable that said initial fee will be depleted before conclusion of the matter, an
additional fee will be required to be paid by client to attorney in an amount sufficient to
conclude the matter.”
After the firm depleted its retainer, Barrera sent Rodriguez an invoice of $2,410.15
for its outstanding legal fees. Rodriguez refused to pay and instead engaged another
attorney. On May 3, 2016, Barrera filed suit against Rodriguez to recoup its outstanding
legal expenses. In its original petition, Barrera asserted causes of action under sworn
account and breach of contract. In addition to requesting $2,410.55 in outstanding fees,
Barrera sought reasonable attorney’s fees, punitive damages, pre- and post-judgment
interest, and all court costs. Rodriguez filed a verified answer and general denial. She
also asserted a counterclaim for her attorney’s fees and the affirmative defenses of failure
of consideration, accord and satisfaction, and payment.
According to Barrera, it served multiple sets of discovery on Rodriguez, such as
interrogatories and requests for disclosure, admissions, and production. The discovery
requests went unanswered. Barrera later filed separate motions for summary judgment
for each of Rodriguez’s affirmative defenses, as well as on Rodriguez’s counterclaim.
Barrera also filed multiple motions for death penalty sanctions.
On September 24, 2018, during a trial on the merits, Barrera’s attorney Keith
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Livesay testified regarding his attorney’s fees in prosecuting this collection case. Livesay
explained that he was board certified in civil appellate law and was retained by Barrera to
collect in this matter. Livesay opined that his “reasonable attorney’s fees would be
$20,000.” He acknowledged that although his fee was disproportionate in terms of the
damages that were sought, the case had grown contentious and required additional legal
research and work. He explained that because the discovery he sent on behalf of Barrera
went unanswered, he was compelled to file numerous motions for summary judgment to
streamline the case and move it forward. Livesay argued that because Rodriguez’s
attorney, Fela Olivarez, had claimed that her fees were $10,000 in her pleadings, his fees
were $20,000 because he “probably worked double on this.” 1 Barrera did not point to any
of its attorney’s bills in the record, nor did we find any, to support the $20,000 request for
attorney’s fees.
On October 31, 2018, the trial court signed its final judgment in favor of Barrera
and awarded $2,410.55 in owed expenses, $5,000 in attorney’s fees, $1,170.78 in pre-
judgment interest, $818 in court costs, and post-judgment interest at the rate of 5 percent
per annum until the judgment was satisfied. The trial court also awarded $15,000 in
attorney’s fees in the event of an appeal to the intermediate court of appeals, and $17,500
in attorney’s fees if the Texas Supreme Court accepted petition of the case.
1 We note that our reporter’s record only includes Livesay’s testimony regarding his attorney’s fees
during trial. See TEX. R. APP. P. 34.6. In its request for a partial reporter’s record, Barrera only requested
“the initial direct testimony of Keith C. Livesay concerning attorney’s fees. Such transcript shall not include
the testimony of any other witness, and shall not contain any other portion of the testimony of Keith C.
Livesay.” See id. Accordingly, the trial transcript does not include his cross-examination by Rodriguez’s
counsel Olivarez, or any other portion of the trial. Rodriguez did not file a response in this appeal, and she
did not supplement the reporter’s record to include a full transcript of Livesay’s testimony.
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Rodriguez filed a Motion for Rehearing on November 21, 2018, arguing that “there
was no itemized statement of time and costs admitted to the Court to warrant an award
of attorney’s fees and costs as stated in the Final Judgment” and that the fees were
“excessive,” “unfair,” and “unmerited.” Barrera responded that the amount of attorney’s
fees awarded was only twenty-five percent of what was requested and was too low.
On February 11, 2019, the trial court granted Rodriguez’s Motion for
Reconsideration. 2 In its amended final judgment, the court reduced the attorney’s fees
from $5,000 to $1,500 and prejudgment interest from $1,170.78 to $350. It also reduced
the amount of attorney’s fees for appeals to $10,000 for an intermediate appeal and
$10,000 for an appeal at the Texas Supreme Court. Barrera appeals.
II. MOTION FOR REHEARING
Barrera’s first issue alleges the trial court abused its discretion when it granted
Rodriguez’s motion for rehearing or new trial.
A. Standard of Review & Applicable Law
Texas Rule of Civil Procedure 320 provides in part that “new trials may be granted
and judgment set aside for good cause, on motion or on the court’s own motion on such
terms as the court shall direct. New trials may be granted when the damages are
manifestly too small or too large.” TEX. R. CIV. P. 320.
A motion for reconsideration or rehearing is equivalent to a motion for new trial. In
2 Under the Texas Rules of Civil Procedure, the motion for rehearing had already been overruled
by operation of law on January 14, 2019. See TEX. R. CIV. P. 329b. However, the trial court still had plenary
power until February 14, 2019 to vacate, modify, correct, or reform its judgment. See id. R. 329b(e); Moritz
v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). Accordingly, the trial court’s order granting Rodriguez’s motion
for rehearing and entering an amended final judgment on February 11, 2019 was still timely.
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re Dixon, 346 S.W.3d 906, 910 (Tex. App.—Tyler 2011, orig. proceeding). The standard
of review for a trial court’s decision on a motion for new trial or for rehearing is abuse of
discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009); Henry v.
Halliburton Energy Servs., Inc., 100 S.W.3d 505, 510 (Tex. App.—Dallas 2003, pet.
denied). A trial court abuses its discretion when its ruling is arbitrary, unreasonable or
without reference to any guiding rules or legal principles. Bocquet v. Herring, 972 S.W.2d
19, 21 (Tex. 1998); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985).
The Texas Supreme Court’s jurisprudence regarding motions for new trial has
evolved significantly in the last decade. In 2009, the high court held that trial courts have
broad discretion to grant new trials, which may be granted for “good cause” or “in the
interest of justice” but that their discretion is “not limitless.” In Re Columbia Med. Ctr. of
Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex. 2009) (orig. proceeding); see
also In re Old Am. Cty. Mut. Fire Ins. Co., No. 13-13-00644-CV, 2014 WL 1633098, at *8
(Tex. App.—Corpus Christi–Edinburg Apr. 23, 2014, no pet.) (orig. proceeding). Later that
year, the supreme court reaffirmed its holding that a trial court abuses its discretion when
it disregards a jury verdict and grants a new trial without giving its reasons for doing so.
See In re E.I. du Pont de Nemours & Co., 289 S.W.3d 861, 862 (Tex. 2009) (orig.
proceeding).
In 2012, the supreme court “reiterated the considerable discretion afforded trial
judges in ordering new trials.” In re United Scaffolding, Inc., 377 S.W.3d 685, 687 (Tex.
2012) (orig. proceeding) (citing In re Columbia Med. Ctr., 290 S.W.3d at 212). In United
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Scaffolding, the high court held that a trial court does not abuse its discretion when
granting a new trial as long as it (1) provides a reason for which a new trial is legally
appropriate; and (2) the order is specific enough to indicate that the trial court did not
simply repeat a pro forma template but rather derived the articulated reasons from the
particular facts and circumstances of the case at hand. Id. at 688–89. The supreme court
further denounced the use of “and/or” in the list of rationales for granting a new trial where
one stated rationale was “in the interest of justice and fairness” because that practice left
open the possibility that “in the interest of justice and fairness” was the sole rationale, and
“that is never an independently sufficient reason for granting a new trial.” Id. at 689–90.
And in 2013, the Texas Supreme Court held in In re Toyota Motor Sales, U.S.A., Inc. that
“a trial court must explain with reasonable specificity why it has set aside a jury verdict
and granted a new trial.” 407 S.W.3d 746, 748 (Tex. 2013) (orig. proceeding). “Without
such an explanation, parties in the case can only speculate about why the court ostensibly
circumvented a critical constitutional right” or the right to a jury trial. Id.
In each of the foregoing cases, however, the Texas Supreme Court addressed the
sufficiency of description required for orders granting a new trial following a jury trial. None
of the cases dealt with new trial orders in non-jury cases, such as bench trials, default
judgments, or summary judgments. In her concurring opinion in In re Toyota, Justice
Lehrmann noted as follows:
Both Columbia and our subsequent opinion in [United Scaffolding] focused
on transparency in the context of setting aside jury verdicts, noting the
importance of ensuring that trial courts do not impermissibly substitute their
judgment for that of the jury . . . . This concern, however, is not present with
respect to new-trial orders that do not set aside a jury verdict, such as orders
issued after a bench trial or setting aside a default judgment.
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Accordingly, . . . the Columbia line of cases does not apply to such orders.
See 407 S.W.3d at 762–63 (Lehrmann, J., concurring) (internal citations omitted); see
also In re Cort, No. 14-14-00646-CV, 2014 WL 4416074, at *2 (Tex. App.—Houston [14th
Dist.] Sept. 9, 2014, no pet.) (orig. proceeding) (mem. op.).
B. Analysis
Here, the trial court’s order granting reconsideration of final judgment set forth as
follows:
[Barrera] presented its evidence and rested. [Rodriguez] presented her
evidence and rested. The Court took judicial notice of its file, and
reasonable attorney’s fees. The Court, having considered the evidence
presented, along with the arguments and authorities of counsel, finds that
Defendant’s Motion for Reconsideration of the Judgment is hereby
GRANTED.
In the absence of further guidance from the supreme court, we decline to expand
the In re Columbia line of cases to orders granting new trials rendered after non-jury
proceedings. See City of Mission v. Cantu, 89 S.W.3d 795, 809 n. 21 (Tex. App.—Corpus
Christi–Edinburg 2002, no pet.) (“As an intermediate appellate court, we are bound to
follow the expression of the law as stated by the Texas Supreme Court.”); see also In re
Old Am. Cty. Mut. Fire Ins. Co., 2014 WL 1633098, at *11 (declining to conduct a merits-
based review to an order for new trial after a bench trial); In Re Cort, 2014 WL 4416074,
at *2 (declining to interpret a new trial order after a post-answer default judgment under
the In re Columbia line of analysis).
In the underlying case, the court’s order expressed that it “considered the evidence
presented and authorities of counsel” when granting the motion for rehearing. When a
trial court sets forth that it based a ruling on the evidence and law before it, this is not
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“arbitrary, unreasonable or without reference to any guiding rules or legal principles.”
Bocquet, 972 S.W.2d at 21; Downer, 701 S.W.2d at 241–42. We therefore conclude the
trial court did not abuse its discretion when granting Rodriguez’s motion for rehearing.
See id. We overrule Barrera’s first issue.
III. AWARD OF ATTORNEY’S FEES
Barrera’s second issue challenged the trial court’s reduction of attorney’s fees from
$5,000 to $1,500 in the amended final judgment.
A. Standard of Review & Applicable Law
“Texas follows the American rule on attorney’s fees, which provides that, generally,
‘a party may not recover attorney’s fees unless authorized by statute or contract.’” In re
Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 809 (Tex. 2017) (orig. proceeding) (citing
Wheelabrator Air Pollution Control, Inc. v. City of San Antonio, 489 S.W.3d 448, 453 n.4
(Tex. 2016)). In this case, sections 38.001(7) and (8) of the Texas Civil Practice and
Remedies Code allow for the recovery of reasonable attorney's fees from an individual if
the claim is for a sworn account or breach of contract claim, respectively. See TEX. CIV.
PRAC. & REM. CODE ANN. §§ 38.001(7)–(8).
The Texas Supreme Court recently addressed the recovery and calculation of
attorney’s fees. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469,
483 (Tex. 2019). In Rohrmoos, the high court held that it intended for the “lodestar
analysis to apply to any situation in which an objective calculation of reasonable hours
worked times a reasonable rate can be employed” to determine the amount of attorney’s
fees to be awarded. Id. at 497–98. The fact finder's “starting point” for calculating an
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award of attorney’s fees is “determining the reasonable hours worked multiplied by a
reasonable hourly rate,” and the party seeking recovery of attorney’s fees bears the
burden of providing sufficient evidence on both counts. Id. at 498; El Apple I, Ltd. v.
Olivas, 370 S.W.3d 757, 760 (Tex. 2012). “This base lodestar figure should approximate
the reasonable value of legal services provided in prosecuting or defending the prevailing
party's claim through the litigation process.” Rohrmoos, 578 S.W.3d at 498. “[T]here is a
presumption that the base lodestar calculation, when supported by sufficient evidence,
reflects the reasonable and necessary attorney's fees that can be shifted to the non-
prevailing party.” Id. at 499. The “base lodestar figure accounts for most of the
relevant Arthur Andersen considerations.” Id. at 500 (citing Arthur Andersen & Co. v.
Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (setting forth eight factors a
factfinder should consider when determining the reasonableness of attorney’s fees)).
At a minimum, “sufficient evidence” to support a fee award includes evidence of
(1) particular services performed, (2) who performed those services, (3) approximately
when the services were performed, (4) the reasonable amount of time required to perform
the services, and (5) the reasonable hourly rate for each person performing such
services. Id. at 498; El Apple I, 370 S.W.3d at 764. Generally, conclusory testimony
devoid of any real substance” will not support an award of attorney’s fees. Rohrmoos
Venture, 578 S.W.3d at 501.
“Appellate courts review a trial court’s award of attorney’s fees under an abuse of
discretion standard.” Mohamed v. Ctr. for Sec. Policy, 554 S.W.3d 767, 778–79 (Tex.
App.—Dallas 2018, pet. denied). “A court abuses it discretion if it rules without reference
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to guiding rules or principles.” Id. at 779.
B. Analysis
Here, Livesay testified at trial that he was board certified in civil appellate law and
that the case was “very contentious and somewhat complicated.” He further explained:
We . . . filed and when we weren’t successful on discovery or getting
answers through discovery, we had to file motions for summary judgment
because I was trying to streamline the case. And we filed numerous motions
for summary judgment. We had to go through that exercise several times.
As part of the response to the motion for summary judgment, Ms. Olivarez
said she was entitled to $10,000 for the defense of the case . . . [a]nd I
probably worked double on this of Ms. Olivarez, so that’s the basis of my
$20,000 request.
Applying the Rohrmoos factors in this analysis, we conclude that Livesay’s
testimony provides evidence of the first and second factors: the particular services he
performed as Barrera’s attorney, and who performed those services. See
578 S.W.3d at 501. The record, however, is devoid of evidence regarding the third
through fifth factors: when the services were performed, the reasonable amount of time
required to perform those services, and Livesay’s hourly rate. See id. Barrera, as the party
seeking recovery of attorney’s fees, bore the burden of providing sufficient evidence on
each of these factors. Id. at 498; El Apple I, 370 S.W.3d at 760. Based on the record
before us, it did not meet this burden.
In El Apple, the Texas Supreme Court ultimately overturned an award of attorney’s
fees for the following reasons:
[N]either attorney indicated how the 890 hours they spent in the aggregate
were devoted to any particular task or category of tasks. Neither attorney
presented time records or other documentary evidence. Nor did they testify
based on their recollection of such records. The attorneys instead based
their time estimates on generalities such as the amount of discovery in the
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case, the number of pleadings filed, the number of witnesses questioned,
and the length of the trial. While all this is relevant, it provides none of the
specificity needed for the trial court to make a meaningful lodestar
determination. The court could not discern from the evidence how many
hours each of the tasks required and whether that time was reasonable.
Without at least some indication of the time spent on various parts of the
case, a court has little basis upon which to conduct a meaningful review of
the fee award.
370 S.W.3d at 763; see also City of Laredo v. Montano, 415 S.W.3d 731, 736 (Tex. 2013)
(where the high court held that an attorney’s representation that he generated “thousands
and thousands of pages,” spent “a lot of time getting ready for the lawsuit,” and conducted
“a lot of legal research” was insufficient evidence under the lodestar analysis to establish
reasonable attorney’s fees); Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014) (overturning
a fee where affidavit testimony described “involved extensive discovery, several pretrial
hearings, multiple summary judgment motions, and a four and one-half day trial” but was
not accompanied by any evidence “of the time spent on specific tasks. . . .”). We find the
same lack of evidence here. Accordingly, we hold the trial court did not abuse its
discretion in lowering the attorney’s fees from $5,000 to $1,500 when Barrera failed to
provide sufficient evidence to establish its attorney’s fees.
IV. CONCLUSION
We affirm the trial court’s judgment.
LETICIA HINOJOSA
Justice
Delivered and filed the
10th day of December, 2020.
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