Affirmed in Part and Reversed and Remanded in Part and Opinion filed
September 29, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-01100-CV
JANNA RUSSELL, Appellant
V.
DAVID CHRISTOPHER RUSSELL, Appellee
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause No. 2007-65512
OPINION
In this appeal after remand, appellant Janna Russell contends that the trial
court failed to comply with this court’s opinion and mandate by refusing to award
her reasonable attorney’s fees and costs in connection with her action for contempt
and enforcement against her former husband, David Christopher Russell. In nine
issues, Janna argues that she presented uncontroverted evidence that she incurred
reasonable attorney’s fees and costs totaling $122,195.00 and is entitled to a
rendition of judgment for that amount. In response, Chris argues that the trial court
complied with this court’s instructions and correctly denied Janna’s request for
attorney’s fees and costs because the amount requested was excessive. We reverse
and remand for a new trial on attorney’s fees, and affirm the remainder of the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Janna and Chris were divorced in 2008. In 2009, Janna filed a motion for
contempt and enforcement, contending that Chris had violated several provisions
of the parties’ Agreed Final Decree of Divorce (the “Decree”) and an incorporated
Agreement Incident to Divorce, titled “Property Division.” The proceedings that
followed are recounted in this court’s opinion in Russell v. Russell, No. 14-10-
00494-CV, 2012 WL 3574713 (Tex. App.—Houston [14th Dist.] Aug. 21, 2012,
pet. denied) (mem. op.) (“Russell I”). As explained in Russell I, after several
hearings, the trial court awarded Janna a judgment for $1,224.00 for unreimbursed
medical expenses incurred on behalf of a child and $15,799.00 for funds
previously ordered to be paid into an Amegy Bank UGMA1 Savings Account (the
“UGMA account”) on the child’s behalf. Id. at *1–2. However, the trial court did
not award Janna additional child-support arrearages she sought or attorney’s fees.
In her first three appellate issues in Russell I, Janna asserted that she was
entitled to attorney’s fees and costs based on: (1) Family Code section 157.167; (2)
Family Code section 9.014; and (3) a fee-shifting provision in the Property
Division incorporated into the Decree. Id. at *2. The Russell I court first
considered whether Janna was entitled to attorney’s fees and costs under section
157.167. That section provides that a trial court “shall” award the movant’s
reasonable attorney’s fees and costs if it finds that the respondent has failed to
1
See Tex. Prop. Code §§ 141.001–.025 (Texas Uniform Transfers to Minors Act).
2
make child support payments. See Tex. Fam. Code § 157.167(a). However, the
statute also provides that a trial court may waive this requirement if good cause is
shown and the trial court states the reasons supporting the good-cause finding.
Id. § 157.167(c).
The Russell I court noted that (1) Janna’s pleadings referred to her request
for medical support as child support, (2) case law recognizes that medical support
is an additional child-support obligation, and (3) Janna both pleaded for and
presented evidence to support an award of attorney’s fees. Id. at *3. Moreover, the
trial judge had awarded Janna $1,224.00 in medical support, but gave no reasons
within its findings of fact and conclusions of law or its judgment to support its
failure to award reasonable attorney’s fees to Janna. Id. Accordingly, the Russell I
court held that “the trial court abused its discretion by failing to award attorney’s
fees without stating good cause.” Id. The court also rejected Chris’s argument that
the judge was not obligated to award attorney’s fees because Chris was not held in
contempt. Id. at *4. Having found that the trial court erred by failing to award
attorney’s fees without stating good cause, the court did not address Janna’s
remaining issues regarding attorney’s fees. Id. at *4 n.2. The court also sustained
another of Janna’s issues in which she contended that that the trial court erred by
failing to award Janna a child-support arrearage of $166.78. Id. at *5. The
remainder of the trial court’s judgment was affirmed.
Ultimately, the Russell I court reversed that portion of the trial court’s
judgment denying an award to Janna of reasonable attorney’s fees, as well as the
child-support arrearage of $166.78 plus prejudgment and post-judgment interest on
that amount, and remanded the case to the trial court for further proceedings
consistent with its opinion. Id. at *7. Chris sought review by the Supreme Court of
Texas, but his petition for review was denied.
3
On remand, Janna moved for an award of the additional arrearage and her
attorney’s fees and court costs pursuant to the Russell I court’s opinion and
mandate, arguing that she was entitled to her fees under both section 157.167 and a
fee-shifting provision in the Property Division that was incorporated into the
Decree.2 Janna sought a hearing on her motion, but the trial court declined to hold
a hearing. Instead, on August 13, 2013, the trial court faxed a handwritten rendition
of its judgment on remand, which was memorialized in a written order signed on
September 10, 2013. In the order, the trial court awarded Janna a judgment for
$166.78 plus pre-judgment and post-judgment interest. However, the court denied
Janna an award of attorney’s fees: “The Court finds that David Christopher Russell
is not in contempt, therefore, awards no attorneys fees. Attorney fees are denied at
this time.” The September 10, 2013 order is the subject of this appeal.
Janna moved for a new trial. At a hearing on her motion, Janna argued that
Russell I provided that the trial court’s decision not to hold Chris in contempt was
not a basis for refusing to award fees, and that the case was remanded for the
purpose of awarding attorney’s fees to Janna. The trial judge stated that he did not
believe an award of attorney’s fees was appropriate and orally denied the motion.
The judge also suggested that if the court of appeals believed attorney’s fees
should have been awarded and the record established the amount of those fees, it
would have reversed and rendered, rather than remanding the case back to him.
Further, the trial judge at one point said he did not award attorney’s fees in part
because they were “excessive in the particular instance”; however, he later stated
that he believed that “those fees were reasonable” and should be paid by Janna, but
that Chris should not be made to pay them.
2
Janna did not assert, as she had in Russell I, that she was also entitled to an award of
reasonable attorney’s fees and costs under Family Code section 9.014. See Russell I, 2012 WL
3574713, at *2. Nor does she assert this ground on appeal.
4
Janna moved for findings of fact and conclusions of law. Chris also filed
proposed findings of fact and conclusions of law. In November 2013, the trial court
issued its findings of fact and conclusions of law. Relevant here are the following:
4. The Court hereby finds on August 13, based upon the record
and the court file, this Court ruled on Janna Russell’s Motion
and filed and faxed a letter to the parties, thereby rendering its
ruling.
5. The Court hereby finds that the final Order of September 10,
2013, based on the rendered ruling of August 13, 2013,
provides as it provides.
6. The Court hereby finds that the Order of September 10, 2013
was made based upon review and reconsideration of the trial
record and evidence.
The trial court did not include proposed findings of fact submitted by Chris to
support a finding of good cause, and declined to file amended and additional
findings Janna requested. This appeal followed.
ISSUES AND ANALYSIS
On appeal, Janna raises nine issues: (1) the trial court abused its discretion
on remand in failing to award attorney’s fees to Janna pursuant to the opinion and
mandate in Russell I; (2) the trial court abused its discretion in failing to award
attorney’s fees to Janna in accordance with Texas Family Code section 157.167;
(3) the trial court erred as a matter of law in failing to award attorney’s fees to
Janna; (4) the trial court’s denial of an award of fees to Janna was against the great
weight and preponderance of the evidence; (5) no finding can be implied to support
the trial court’s denial of fees; (6) the trial court erred in failing to award fees
pursuant to the Decree; (7) the trial court’s failure to award fees in keeping with
the Decree changed the division of property; (8) the trial court failed to follow the
law of the case; and (9) Janna seeks remand for fees incurred upon remand, and
5
appeal to this court and to the Texas Supreme Court. We address Janna’s issues
and Chris’s responses in the order and as needed to resolve this appeal.
I. Did the Trial Court Fail to Follow This Court’s Opinion and Mandate?
When an appellate court remands a case and limits a subsequent trial to a
particular issue, the trial court is restricted to a determination of that particular
issue. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). Thus, in a
subsequent appeal, instructions given to a trial court in the former appeal will be
adhered to and enforced. Id. In interpreting the appellate court’s mandate, the
courts should look not only to the mandate itself but also to the appellate court's
opinion. Id. Even if the remand is limited, however, the trial court is given a
reasonable amount of discretion to comply with the mandate. Austin Transp. Study
Policy Advisory Comm. v. Sierra Club, 843 S.W.2d 683, 690 (Tex. App.—Austin
1992, writ denied).
In this case, the Russell I court reversed and remanded the case “for further
proceedings consistent with [the court’s] opinion” after concluding that the trial
court “abused its discretion by failing to award attorney’s fees [under 157.167]
without stating good cause.” See Russell I, 2012 WL 3574713, at *3, *7. The
Russell I court further clarified that section 157.167 does not require that the trial
court hold Chris in contempt before awarding attorney’s fees. See id. at *4. The
accompanying judgment and mandate provided:
This cause, an appeal in favor of appellee, David Christopher
Russell, signed, March 3, 2010, was heard on the transcript of the
record. We have inspected the record and find error in the judgment.
We therefore order that portion of the judgment of the court below
denying Janna Russell’s reasonable attorney’s fees, and the amount of
$166.78 plus prejudgment and post-judgment interest, REVERSED
and REMAND the cause for proceedings in accordance with the
court’s opinion.
6
On remand, and without a hearing on Janna’s motion to award reasonable fees and
court costs, the trial court again awarded no attorney’s fees to Janna.
Janna contends that the this court’s mandate instructed the trial court to
award her attorney’s fees because, as explained in Russell I, an award under
section 157.167 is mandatory absent good cause stated on the record, and the
failure to find contempt on Chris’s part does not bar an award. See Tex. Fam. Code
§ 157.167(a), (c); Russell I, 2012 WL 3574713, at *3–4. According to Janna, the
trial court repeatedly recognized at both the original trial and on remand that
Janna’s attorney’s fees were reasonable and that Janna’s attorney’s testimony
concerning the reasonableness of her fees satisfied the lodestar criteria of Long v.
Griffin.3 Therefore, she argues, the trial court failed its mandated duty to follow
section 157.167 and award her the full amount of attorney’s fees she requested.
Chris contends, however, that the Russell I opinion and mandate contain no
language instructing the trial court to award Janna fees of $122,195.00. Instead, the
Russell I court held only that the trial court’s failure to award fees without stating a
reason violated section 157.167’s requirement that the trial court must state its
reasons for denying the fees. Chris maintains that the opinion and mandate suggest
at least two possibilities for compliance on remand: (1) the trial court could
maintain his failure to award the fees if he stated his reason for that decision as
required by section 157.167; or (2) the trial court could determine there was no
good cause for the failure to award the fees and enter judgment awarding the fees
under section 157.167.
We agree with Chris that the Russell I court did not instruct the trial court to
simply award Janna her attorney’s fees under the statute; the court merely
recognized the trial court’s error and remanded for the trial court to correct its
3
442 S.W.3d 253, 255 (Tex. 2014) (per curiam).
7
error, either by awarding reasonable fees or stating good cause for denying fees.
Our reading of the opinion’s plain language is further supported by the fact that the
court recognized that Janna had asserted other possible bases for an award of
attorney’s fees, but did not address them. See id. at *4 n.2. The court’s analysis
was limited to explaining that attorney’s fees were recoverable under section
157.167 based on the award of $1,224.00 for medical child support owed; the court
did not discuss whether the trial court’s award of $15,799.00 for the UGMA
account also supported recovery of attorney’s fees under the statute or one of
Janna’s other theories. Therefore, the trial court was free to consider whether Janna
was also entitled to an award of attorney’s fees pursuant to a Family Code statute
or the parties’ contract, as Janna alleged, for the amounts she recovered.
Chris further argues, however, that the trial judge recognized a third option
as reflected in his findings of fact: he reviewed the evidence and the record and,
based on the record as a whole, again declined to award any fees. According to
Chris, the trial court concluded that the fees were excessive and therefore
unreasonable. Chris maintains that the trial court’s failure to award unreasonable
fees does not trigger the application of section 157.167 or its requirement that good
cause for the denial of fees be stated on the record. In support of this conclusion,
Chris argues that the trial court made no finding in the first trial or on remand that
the fees were reasonable, and he points to another of the court’s comments during
the post-remand hearing in which the trial court stated, “I did not award
attorney[’]s fees because in my opinion they were excessive in the particular
instance . . . .”4 Chris also cites this court’s opinion in In the Interest of A.L.S., 338
4
We note that in that same sentence, the trial court went on to say, “and I found that it
was not contemptible and the payment of child support was not a contemptible refusal to pay.” In
any event, the trial court’s comments made at the conclusion of a bench trial are not a substitute
for findings of fact and conclusions of law. See In the interest of W.E.R., 669 S.W.2d 716, 716
(Tex. 1984) (per curiam).
8
S.W.3d 59, 69 (Tex. App.—Houston [14th Dist.] 2011, pet. denied), in which we
held that the trial court did not err by denying attorney’s fees under 157.167
without stating good cause because the movant presented no evidence of fees. Id.
We disagree with Chris that section 157.167 is not triggered if the requested
fees are unreasonable. Section 157.167 expressly provides that the statute is
triggered “if the court finds that the respondent has failed to make child support
payments,” not on a threshold finding of reasonableness. See Tex. Fam. Code §
157.167(a). Absent a specific finding that the respondent has shown good cause to
not pay attorney’s fees, and the court stating the reasons supporting such a finding,
the court is required to award reasonable attorney’s fees to the movant. See id.
§ 157.167(a), (c); Russell I, 2012 WL 3574713, at *3–4; see also Goudeau v.
Marquez, 830 S.W.2d 681, 682 (Tex. App.—Houston [1st Dist.] 1992, no writ).
Moreover, A.L.S. is distinguishable and does not support Chris’s argument. As we
explained in that case, the party seeking attorney’s fees has the burden of proof,
and the movant had waived her right to fees because she offered no evidence
whatsoever to support a fee award. See A.L.S., 338 S.W.3d at 69.
In this case, Janna presented expert witness testimony and exhibits
supporting her attorney’s fees. The trial judge made no finding that the fees sought
were unreasonable, and as noted above, he explained elsewhere in the same
hearing that he believed the attorney’s fees charged to Janna were reasonable, but
also believed that Chris should not have to pay them. The judge also expressly
rejected Chris’s proposed findings that good cause existed for denying attorney’s
fees. Because section 157.167 requires that good cause be stated on the record and
the trial judge rejected proposed finding supporting good cause, this court may not
imply a finding of good cause to support the trial court’s judgment. See Williams v.
Gillespie, 346 S.W.3d 727, 732–33 (Tex. App.—Texarkana 2011, no pet.);
9
Fanning v. Fanning, 828 S.W.2d 135, 143 (Tex. App.—Waco 1992), rev’d in part
on other grounds, 847 S.W.2d 225 (Tex. 1993).
The trial court’s August 13, 2013 letter informing the parties of its ruling
provided, in part, that “[t]his court makes a negative finding on the contempt,
therefore, determining to award no attorney fees. Attorney fees are denied at this
time” (emphasis added). The signed September 10, 2013 judgment contains similar
language. In the findings of fact, the trial court found that its written order of
September 10, 2013 was “based on the rendered ruling of August 13, 2013” and
“provides as it provides.” Additionally, just before overruling Janna’s motion for
new trial, the trial court stated:
I remember. I heard all that and I determined the gentlem[a]n was not
in contempt and I do not think the law is that I must award attorney
fees in a child support issue or in this case in particular when I do not
find him in contempt. And I exercised by discretion which the Court
of Appeals said I don’t have the discretion, but I found that all these
days of trial, those fees were reasonable and Ms. Russell ought to pay
them, but I didn’t find Mr. Russell in contempt and I did not award
attorneys fee[s].
Although one of the trial court’s conclusions of law states that “since contempt was
not found, attorney’s fees must be considered by the court based upon the evidence
in the record,” the trial court’s handwritten ruling of August 13, its September 10
signed order, and its comments at the hearing demonstrate that the trial court
declined to award Janna attorney’s fees because it did not find Chris in contempt.
See Russell I, 2012 WL 3574713, at *4.
Because the trial court failed to award Janna reasonable attorney’s fees
under section 157.167 without stating any reasons supporting a finding of good
cause to deny fees, and further failed to consider Janna’s additional argument on
remand that she was entitled to her reasonable fees under the Decree, the trial court
10
erred by failing to follow the Russell I court’s opinion and mandate.
II. The Sufficiency of the Evidence of Attorney’s Fees to Support
Rendition or Remand
Janna contends that the evidence establishes that her attorney’s fees were
reasonable as a matter of law and therefore she is entitled to rendition of judgment
for the full amount of $122,195.00. Alternatively, Janna contends that the award of
zero attorney’s fees is against the great weight and preponderance of the evidence.
Janna also asserts that the Property Division incorporated into the Decree supports
her claim for attorney’s fees.
In response, Chris argues that Janna failed to establish that her fees are
reasonable as a matter of law. Chris also argues that legally and factually sufficient
evidence exists to support a finding of good cause to deny Janna attorney’s fees,
and that Janna’s failure to segregate her attorney’s fees further supports a good
cause finding. Chris also disputes Janna’s contention that she is also entitled to
recover attorney’s fees under the Property Division.
A. Availability of Attorney’s Fees under Statute or Contract
As noted above, the Russell I court reversed and remanded the case because
Janna recovered unpaid medical support of $1,224.00 and $166.78, but the trial
judge did not award Janna reasonable attorney’s fees and costs or state any reasons
for good cause to deny them as required under Family Code section 157.167. The
Russell I court did not determine whether the award of a judgment for $15,799.00
on Janna’s UGMA account claim also constituted child support for purposes of
section 157.167 or address whether Janna was alternatively entitled to attorney’s
fees under the Decree. See id. at *2–4 & 4 n.2. Because Janna raises these
contentions on appeal, we must first decide whether and to what extent Janna may
be entitled to attorney’s fees either by statute or by contract before we can address
11
the sufficiency of the evidence supporting fees. See Tony Gullo Motors I, L.P. v.
Chapa, 212 S.W.3d 299, 310 (Tex. 2006) (attorney’s fees are not recoverable from
an opposing party unless authorized by statute or contract).
1. Attorney’s fees for enforcement of child support under
Family Code section 157.167
It is undisputed that section 157.167 mandates an award of reasonable
attorney’s fees and costs if the trial court finds that a party has failed to make child
support payments, except that the court may waive the requirement for good cause
shown and the court states the reasons supporting the good-cause finding. Tex.
Fam. Code § 157.167(a), (c); Russell I, 2012 WL 3574713, at *3. Further, section
157.167 does not require that the trial court find contempt before awarding fees.
Russell I, 2012 WL 3574713, at *4. Therefore, absent good cause stated on the
record, the trial court is required to award Janna her reasonable attorney’s fees and
costs in recovering the child-support arrearages of $1,224.00 and $166.78.
Janna argues that the UGMA account also constitutes a type of child support
for purposes of Family Code section 157.167 because the funds were for the
benefit of the child. But Janna cites no authority to support her contention that the
return of funds to a child’s bank account constitutes child support, and we are
aware of none. The record also belies this contention. In the Decree, the UGMA
account appears in the section on “Division of Marital Estate” rather than the
sections relating to child support. And, in her pleadings, Janna categorized her
UGMA account claim as a property claim listed in a section seeking “Enforcement
of Property Agreement Order” rather than under the separate section listing alleged
child support violations. We decline to hold that Janna’s claim for recovery of the
funds in the UGMA account constitutes a type of child support for which section
157.167 provides a recovery of attorney’s fees and costs.
12
2. Attorney’s fees for enforcement of UGMA account claim
under Property Division’s fee-shifting provision
Janna also contends that she is entitled to attorney’s fees under the Property
Division, which is incorporated into the Decree. The Property Division includes
the following fee-shifting provision:
Reasonable attorney’s fees and expenses of a party incurred in
successfully prosecuting or defending a suit under this agreement
against the other party or the other party’s estate will be recoverable
by the successful party in the action.
The Property Division provides that, among other things, Janna is awarded the
property “which belongs to [the child] for which [Janna] has the sole right to
manage,” including the child’s “Amegy Bank UGMA Savings account.” The
Decree requires Chris to deposit $15,799.00 into the UGMA account.
The Family Code provides that, in a divorce proceeding, the parties may
enter into an agreement incident to divorce concerning “the division of the
property and the liabilities of the spouses and maintenance of either spouse.” Tex.
Fam. Code § 7.006(a).5 If the court approves the agreement, the court may set forth
the agreement in full or incorporate the agreement by reference in the final decree.
Id. § 7.006(b). Once the agreement of the parties has been approved by the court
and made part of its judgment, the agreement is no longer merely a contract
between private individuals but is the judgment of the court. Ex Parte Gorena, 595
S.W.2d 841, 844 (Tex. 1979) (orig. proceeding). An agreed divorce decree is a
contract subject to the usual rules of contract interpretation. Broesche v. Jacobson,
218 S.W.3d 267, 271 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
5
The Family Code also contemplates written agreements between spouses providing for
child support, but terms of an agreement pertaining to child support are not enforceable as a
contract. See Tex. Fam. Code § 154.124; Kendrick v. Seibert, 439 S.W.3d 408, 411 (Tex. App.—
Houston [1st Dist.] 2014, no pet.).
13
The Decree incorporates the Property Division as follows:
The Court finds that the parties successfully mediated this case with
the assistance of Steve A. Bavousett, on July 29, 2008 and further,
that the parties have entered into an Agreement Incident to Divorce, a
document separate from this Agreed Final Decree of Divorce. The
Court approves the attached Agreement Incident to Divorce and
incorporates it by reference as part of this Agreed Final Decree of
Divorce as if it were recited herein verbatim and ORDERS the parties
to do all things necessary to effectuate the agreement. To the extent
permitted by law, the parties stipulate and agree that the Agreement
Incident to Divorce is enforceable as a contract. The Agreement
Incident to Divorce is entitled “Property Division” for all purposes.
Additionally, the Property Division provides:
This Agreement Incident to Divorce in conjunction with the Agreed
Final Decree of Divorce replace and supersede any other agreements
either oral or in writing, between the parties relating to the rights and
liabilities arising out of their marriage. This Agreement Incident to
Divorce and the Agreed Final Decree of Divorce together contain the
entire agreement of the parties.
Because the Property Division is incorporated by reference into the Decree and the
two “together contain the entire agreement of the parties,” the Property Division’s
fee-shifting provision is part of the parties’ agreement and the court’s judgment.
Therefore, the trial court should have determined whether Janna was the successful
party under the Property Division’s fee-shifting provision incorporated into the
Decree. If so, Janna is entitled to an award of reasonable attorney’s fees and
expenses based on her recovery of the $15,799.00 Chris was required to deposit
into the UGMA account.
B. Sufficiency of the Evidence of the Reasonableness of Janna’s
Attorney’s Fees and Costs
According to Janna, the trial court recognized and acknowledged that her
fees were reasonable. Additionally, Janna argues that the expert testimony of her
14
attorney, Ellen Yarrell, concerning the reasonableness of her fees was not rebutted
by opposing expert witness testimony, controverted or impeached, and no other
dollar amount was offered by opposing counsel as a more reasonable amount of
fees and costs. Therefore, Janna maintains, Yarrell’s testimony should be accepted
as a matter of law and this court should render judgment awarding Janna
$122,195.00 in reasonable attorney’s fees.
Chris maintains that Janna’s requested fees are not reasonable when
considering the Arthur Andersen factors of the amount in controversy and results
obtained, attendant circumstances may indicate that the fees are unreasonable, and
Janna did not establish that her fees are reasonable as a matter of law.
1. Standards of review
Generally, we review a trial court’s decision to award attorney’s fees for an
abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Under this
standard, legal and factual sufficiency are not independent grounds of error, but
rather are relevant factors in assessing whether the trial court abused its discretion.
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).
In a challenge to legal sufficiency, we review the evidence in the light most
favorable to the challenged finding and indulge every reasonable inference that
would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We
credit favorable evidence if a reasonable fact finder could do so and disregard
contrary evidence unless a reasonable fact finder could not. Id. at 827. The
evidence is legally sufficient if it would enable fair-minded people to reach the
verdict under review. Id. In reviewing the factual sufficiency of the evidence, we
consider and weigh all the evidence and should set aside the judgment only if it is
so contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).
15
A reasonable fee is one that is moderate or fair but not excessive or extreme.
Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010). The reasonableness of
attorney’s fees is ordinarily left to the factfinder, and a reviewing court may not
substitute its judgment for the fact finder’s. Smith v. Patrick W.Y. Tam Trust, 296
S.W.3d 545, 547 (Tex. 2009); Ragsdale v. Progressive Voters League, 801 S.W.2d
880, 881 (Tex. 1990) (per curiam).
Generally, the testimony of an interested witness, such as a party to the suit,
though not contradicted, does no more than cause a fact issue to be determined by
the fact finder. Ragsdale, 801 S.W.2d at 882. For the court to award an amount of
attorney’s fees as a matter of law, the evidence from an interested witness “must
not be contradicted by any other witness or attendant circumstances and the same
must be clear, direct and positive, and free from contradiction, inaccuracies and
circumstances tending to cast suspicion thereon.” Id. Even uncontradicted evidence
may do no more than raise a fact issue, however, if “it is unreasonable, incredible,
or its belief is questionable.” Id.; see Smith, 296 S.W.3d at 548 (“But the fee,
though supported by uncontradicted testimony, was unreasonable in light of the
amount involved and the results obtained, and in the absence of evidence that such
fees were warranted due to circumstances unique to this case.”).
Factors to consider when determining what a reasonable award of attorney’s
fees should be include the following: (1) the time and labor required, the novelty
and difficulty of the questions involved, and the skill required to perform the legal
service properly; (2) the likelihood that the acceptance of the particular
employment will preclude other employment by the lawyer; (3) the fee customarily
charged in the locality for similar legal services; (4) the amount involved and the
results obtained; (5) the time limitations imposed by the client or the
circumstances; (6) the nature and length of the professional relationship with the
16
client; (7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and (8) whether the fee is fixed or contingent on results
obtained or uncertainty of collection before the legal services have been
rendered. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818
(Tex. 1997). These factors are not elements of proof, but are guidelines to be
considered in the determination of the reasonableness of a fee. Acad. Corp. v.
Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex. App.—
Houston [14th Dist.] 2000, no pet.).
2. Yarrell’s testimony concerning the reasonableness of her
fees was disputed
Janna’s petition in her enforcement and contempt action alleged seven
violations of the Decree related to child support and nine violations of the Property
Division, in addition to requesting that Chris be held in contempt, confined, placed
on community supervision, and ordered to post a bond. The original trial record
contains over 100 pages of testimony, cross-examination, and exhibits on the issue
of Janna’s attorney’s fees alone.
Janna’s attorney, Yarrell, testified concerning her qualifications and the
attorney’s fees and expenses incurred on Janna’s behalf. She testified that she
billed at $400 an hour, and her legal assistant billed at $185 an hour. Yarrell
testified that the total fees and costs incurred as of the day before she testified was
$122,195.00. In support of Janna’s requested fees, Yarrell submitted exhibits
detailing the costs incurred and the hours she and her legal assistant spent on the
case broken down by date. Yarrell also testified that some of the fees and costs
were incurred due to Chris’s failure to cooperate with document requests and other
dilatory conduct on Chris’s part.
Chris’s attorney, Jolene Wilson-Glah, did not offer controverting testimony,
17
but she cross-examined Yarrell extensively concerning the reasonableness and
necessity of the attorney’s fees incurred. During cross-examination, Yarrell
acknowledged that Chris had paid some of the child-support violations alleged, but
noted that he did not pay them until after the enforcement action was filed. Yarrell
agreed that some of the violations were non-monetary. In response to questions
concerning the reasonableness of incurring over $122,000.00 in attorney’s fees for
a potential recovery of much less, Yarrell explained that the fees were incurred
based on Janna’s choices in pursuing the present enforcement action against Chris.
Later in the exchange, Yarrell stated that Janna believed that “the disproportionate
division of assets in the divorce was unfair” and it was reasonable for her to
“secure the benefits of the bargain she made.” At one point, the trial court
commented to Yarrell that there was no doubt that she spent all the time she did on
Janna’s case, but “[t]he question is, whether you did too much in Ms. Wilson-
Glah’s opinion.”
Wilson-Glah also attempted to show that some of the same allegations in
Janna’s enforcement had been made in an earlier enforcement action and had been
resolved, and that some actions for which Yarrell sought fees were not part of the
present suit. Yarrell admitted that although she had attempted to segregate fees
relating to an earlier enforcement action, she “may have made some errors.”
On appeal, Chris contends that the focus has always been on the Arthur
Andersen factors of the amount involved and the results obtained, and contends
that the trial court did not err by denying Janna an award of attorney’s fees because
the fees requested were excessive and therefore unreasonable.6 Chris argues that
6
Chris also points to the trial judge’s comment during the hearing on Janna’s motion for
new trial in which the judge stated that he did not award attorney’s fees because “they were
excessive in the particular instance.” However, as discussed above, the judge also stated that he
believed the fees were reasonable in the same hearing, and the record reflects that the trial court
18
Janna’s requested $122,195.00 in attorney’s fees is vastly disproportionate to the
amount of child support in controversy and the amount actually recovered, and
therefore it was within the trial court’s discretion to find the fees unreasonable.
Chris suggests that the fees at issue “are almost 54 times the amount of child
support in controversy and almost 88 times the amount of child support awarded”
and alleges that Janna had a “success rate of less than 20%.”7 Chris also contends
that Janna seeks to recover one-hundred percent of her fees incurred to prosecute
all sixteen of the violations alleged in her petition even though she prevailed on
only three, she lost on other claims involving both monetary and non-monetary
requests for relief, and the trial court did not find Chris in contempt on any of the
violations. Additionally, Chris argues that “attendant circumstances” exist to
support the trial court’s denial of fees because fees were incurred to advance
“frivolous, unfounded or fabricated allegations” relating to specific violations on
which she did not prevail. Therefore, Chris maintains, Janna has failed to
demonstrate that her fees were reasonable as a matter of law.
We agree that Janna has not proved as a matter of law that the fees she seeks
are reasonable. As the record and the parties’ arguments reflect, the proceedings
below were contentious and involved detailed evidence on attorney’s fees relating
to the parties’ long history before the trial court. Although Janna contends that
Yarrell’s testimony was uncontroverted, she was cross-examined at length by
Wilson-Glah concerning whether the fees incurred were reasonable. Wilson-Glah
suggested that Janna’s real motivation was to punish Chris rather than to enforce
the terms of the decree, and Yarrell acknowledged that Janna chose to pursue the
alleged violations despite the amount of fees incurred because Janna felt she had
awarded no fees because he did not find Chris in contempt.
7
Chris’s calculations are limited to the child support recovered and do not take into
account Janna’s recovery of $15,799.00 on the UGMA account claim.
19
been unfairly treated in the divorce. Wilson-Glah also took the position that some
of the fees were incurred for matters that were not at issue in the present
enforcement action, and Yarrell conceded there may have been errors. Because
Yarrell’s testimony was not “free from contradiction, inaccuracies, and
circumstances tending to cast suspicion thereon,” it cannot support the award of
fees as a matter of law. See Ragsdale, 801 S.W.2d at 882. Nor is Janna entitled to
all of the fees she seeks because Chris failed to offer any specific dollar amount as
a reasonable fee, because the burden was on Janna to offer evidence that her fee
was reasonable. See Smith, 296 S.W.3d at 547.
Nevertheless, Janna has presented some evidence to support an award of
fees. An award of no fees is improper in the absence of evidence affirmatively
showing that no attorney’s services were needed or that any services provided were
of no value. See Midland W. Bldg. L.L.C. v. First Serv. Air Conditioning
Contractors, Inc., 300 S.W.3d 738, 739 (Tex. 2009) (per curiam); Cale’s Clean
Scene Carwash, Inc. v. Hubbard, 76 S.W.3d 784, 787 (Tex. App.—Houston [14th
Dist.] 2002, no pet.). Chris does not contend that the record affirmatively shows
that no attorney’s services were needed or that Yarrell’s services were of no value.
Therefore, Janna is entitled to a remand for consideration of the reasonable
attorney’s fees to which she may be entitled.8
C. Segregation of Fees
Chris contends that Janna’s failure to segregate her recoverable and
8
To the extent that Chris argues that evidence of excessive or unreasonable fees,
attendant circumstances (in that Janna’s allegations were frivolous, unfounded, or fabricated), or
the failure to segregate fees is sufficient to support an implied finding of good cause under
Family Code section 157.167, we reject this contention. Chris cites no authority holding that any
of these factors equate to a finding of good cause to deny otherwise mandated fees, and we
decline to so hold on this record. Further, we have already determined that we may not imply a
finding of good cause when the trial court expressly rejected Chris’s proposed findings
supporting good cause.
20
unrecoverable attorney’s fees precludes an award of attorney’s fees as a matter of
law. Generally, a party is required to segregate recoverable from unrecoverable
attorney’s fees in all cases. Chapa, 212 S.W.3d at 313; Kurtz v. Kurtz, 158 S.W.3d
12, 22 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (“When a plaintiff
seeks to recover attorney’s fees in a case involving multiple claims, at least one of
which supports an award of fees and at least one of which does not, the plaintiff
must offer evidence segregating attorney’s fees among the various claims.”).
Although Chris argues that Janna is not entitled to any fees because she failed to
segregate them, Janna’s evidence of her unsegregated fees is “some evidence of
what the segregated amount should be.” See Chapa, 212 S.W.3d at 314; Arrow
Marble, LLC v. Estate of Killion, 441 S.W.3d 702, 709 (Tex. App.—Houston [1st
Dist.] 2014, no pet). In such a case, remand is appropriate to determine the
segregated fee amount due. Chapa, 212 S.W.3d at 314; Arrow Marble, LLC, 441
S.W.3d at 709.
Janna contends, however, that Chris waived any argument that Janna failed
to segregate her fees because he did not raise the issue in his pleadings, argument,
or a motion for new trial in the underlying enforcement. Therefore, Janna
maintains, she is entitled to recover the full amount of $122,195.00 as a matter of
law. We disagree. In this case, the trial court declined to award any attorney’s fees
to Janna in the original trial, so Chris had no reason to object to any failure on
Janna’s part to segregate. See Arrow Marble, LLC, 441 S.W.3d at 708 (concluding
that plaintiff who did not appear for trial did not waive complaint that defendant
failed to segregate fees, noting that plaintiff was not the party appealing the
judgment or complaining about the trial court’s failure to award any fees). 9 As the
9
In support of her waiver argument, Janna cites to Horvath v. Hagey, No. 03–09–00056–
CV, 2011 WL 1744969, at *6 (Tex. App.—Austin May 6, 2011, no pet.) (mem. op.), in which
the court held that the defendant failed to timely object to the plaintiff’s failure to segregate fees
21
party with the burden of proof, Janna cannot use Chris’s failure to object at trial as
“a vehicle by which [Janna] can maintain on appeal that [she] has conclusively
proved [her] fees as a matter of law.” See id.
Janna also argues that all of her claims provide for an award of attorney’s
fees, either by statute or contract, so she was not required to segregate her fees.
However, as discussed above, Family Code section 157.167 and the Decree’s fee-
shifting provision each impose different requirements on the party seeking to
recover fees. For example, the statute requires the trial court to award Janna
reasonable fees for her recovery of child-support arrearages except for good cause
stated on the record, while the fee-shifting provision requires the trial court to
determine, in the first instance, whether Janna is the successful party before she
can be awarded reasonable fees and expenses for recovering on her UGMA claim.
We have already concluded that Janna presented some evidence to support a
mandatory award of fees for her recovery of child-support arrearages under Family
Code section 157.167 unless the trial court states the reasons supporting a finding
of good cause for waiving the requirement. Additionally, Janna may also be
entitled to an award of reasonable attorney’s fees for her recovery on the UGMA
claim if the trial court finds that she is the successful party pursuant to the Decree’s
fee-shifting provision. Because reasonableness of a fee award is a question of fact
and Janna presented some evidence of her fees, remand for a new trial on the
attorney’s fees issue is appropriate to determine the segregated fee amount due, if
any. See Chapa, 212 S.W.3d at 313–14; Arrow Marble, LLC, 441 S.W.3d at 709.
when the defendant first raised the issue in a motion for new trial. That case is distinguishable,
however, because the plaintiff had been awarded fees and the defendant was challenging the fee
award on appeal. See id. at *2. We also note that in this case, Chris raised the issue of
segregation during the original trial when Janna’s attorney was asked whether the fees sought
included fees for claims made in a previous enforcement action, and he requested (but was
denied) findings of fact on the failure to segregate in both the original trial and on remand.
22
D. Fees on Remand and Appellate Attorney’s Fees
Finally, Janna seeks a remand for attorney’s fees and costs incurred post-
remand in connection with her preparation and presentation of the motion to award
fees and the motion for rehearing filed below, as well as any appeals prosecuted by
her in connection with those motions. Janna points out that she requested such
awards on remand in both motions and asserts that such fees are mandated under
the Decree.10 However, Janna offered no evidence of her attorney’s fees incurred
after remand or appellate attorney’s fees in the trial court, either by affidavit
attached to her motion to award attorney’s fees or by offering evidence at the
hearing on the motion for new trial. Because Janna has not presented any evidence
of the “newly incurred fees” on remand, we deny her request. See Varner v.
Cardenas, 218 S.W.3d 68, 69–70 (Tex. 2007) (per curiam) (declining to allow
post-judgment fees to be determined after appeal by remand to the trial court when
no evidence was offered in the trial court regarding a reasonable fee for those
services); In re Lesikar, 285 S.W.3d 577, 586 (Tex. App.—Houston [14th Dist.]
2009, no pet.) (denying request to present evidence of attorney’s fees incurred on
appeal when no supporting evidence was offered below). On remand from this
appeal, Janna may, however, seek attorney’s fees, including appellate attorney’s
fees, incurred in connection with the second remand and any third appeal to the
court of appeals and the supreme court.
CONCLUSION
On remand from Russell I, the trial court failed to either award Janna
attorney’s fees for her recovery of awards for child-support arrearages or state
good cause for denying her fees as required under Family Code section 157.167.
The trial court also failed to consider Janna’s other asserted grounds for an award
10
Janna does not request appellate attorney’s fees incurred for this appeal.
23
of attorney’s fees. On appeal, we conclude that Janna also may be entitled to her
reasonable attorney’s fees and expenses for her recovery of $15,799.00 on her
UGMA account claim if the trial court finds that she was the successful party as
provided in the Property Division’s fee-shifting provision incorporated into the
Decree. For the reasons explained above, we hold that the trial court abused its
discretion by failing to follow the opinion and mandate in Russell I. Because the
reasonableness of a fee award is a question of fact and Janna produced some
evidence of her fees, we reverse the trial court’s judgment and remand to the trial
court for a new trial on attorney’s fees. We affirm the remainder of the judgment.
On remand, the trial court shall: (1) hear evidence presented by the parties
concerning Janna’s request for attorney’s fees and costs under Family Code section
157.167 and the Decree, including the segregation of fees; (2) determine the
reasonable attorney’s fees and costs Janna is entitled to recover for the child-
support claims on which she recovered under Family Code section 157.167, or
state the reasons supporting a finding of good cause on the record; (3) determine
whether Janna is the successful party under the fee-shifting provision incorporated
into the Decree as a result of her recovery of $15,799.00 on her UGMA claim and,
if so, determine the amount of reasonable attorney’s fees and expenses Janna is
entitled to recover under the Decree; and (4) determine whether and to what extent
Janna is entitled to attorney’s fees and costs incurred in the second remand,
including appellate attorney’s fees for a third appeal, if sought.
/s/ Ken Wise
Justice
Panel consists of Justices Christopher, Donovan, and Wise.
24