Thursday, December 15, 2011

How to get attorney's fees awarded: What kind of evidence; is fee segregation required?


As to attorney's fees, clear, direct, and uncontroverted evidence of attorney's fees is taken as true as a matter of law, especially when the opposing party has the means and opportunity to disprove the testimony. B&W Supply, Inc. v. Beckman, 305 S.W.3d 10, 20 (Tex. App.-Houston [1st Dist.] 2009, no pet.); see Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990).
If a claimant is entitled to recover attorney's fees for some but not all of his claims, he bears the burden of segregating his fees between claims for which they are recoverable and claims for which they are not. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006); A&L Eng'g & Consulting, Inc. v. Shiloh Apollo Plaza, Inc., 315 S.W.3d 928, 931 (Tex. App.-Dallas 2010, no pet.).
But a party is not required to segregate attorney's fees if “discrete legal services advance both a recoverable and unrecoverable claim,” thus causing the fees to become “so intertwined that they need not be segregated.” Chapa, 212 S.W.3d at 313-14. If legal fees are incurred to prosecute a claim for which fees are recoverable, the resulting fees are recoverable even if the services also support claims for which fees are not recoverable. Chapa, 212 S.W.3d at 313.

SOURCE: DALLAS COURT OF APPEALS - 05-10-00173-CV - 12/15/11

The Homebuyers' attorney stated his attorney's fees were $29,944.75, and he had deleted $5477.50 from his bills relating to the proceedings against Langford. The Homebuyers' attorney testified the remaining bills were for time spent on the Home-Sellers' case involving DTPA and fraud, and he was unable to separate those bills because they were so intertwined. The Homebuyers' attorney testified $24,467.25 would be a reasonable fee for the work he performed in this case. The Homebuyers' attorney was cross examined about both the time spent on the case and the segregation of fees. The Home-Sellers stipulated that the Homebuyers' attorney was qualified when he began his testimony regarding attorney's fees. The trial court heard all the evidence and awarded attorney's fees of $20,000. The record shows the attorney's fees associated with claims against Langford were segregated. Because the record shows the legal services advanced both the fraud and DTPA claims against the Home-Sellers, the fees were so intertwined that segregation was not necessary. See Chapa, 212 S.W.3d at 313. This record shows the Homebuyers presented competent evidence of out-of-pocket expenses, loss of fair market value, mental anguish damages, and attorney's fees. We therefore uphold the trial court's finding on these damages. See Fernandez, 15 S.W.3d at 651. We overrule the Home-Sellers' fourth issue.

We affirm the trial court's judgment.

SOURCE: FIFTH COURT OF APPEALS IN DALLAS, TX - 05-10-00173-CV - 12/15/11 (judgment in favor of buyers of vermin-infested home against sellers who did not make proper disclosure of termites affirmed; see prior post on this blog)

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