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Macfarland v. Le-Vel Brands LLC

Court of Appeals of Texas, Fifth District, Dallas

May 15, 2018


          On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-00376-2016

          Before Justices Lang, Myers, and Evans



         Brian C. MacFarland appeals the trial court's award of $325.00 in attorney's fees to him pursuant to section 27.009(a) of the Texas Citizens Participation Act ("TCPA"). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (West 2015). Specifically, in four issues on appeal, MacFarland contends he is entitled to an award of $57, 135.00 in attorney's fees under the TCPA, rather than $325.00.[1]

         We decide against MacFarland on his first and second issues. We need not reach his remaining issues. The trial court's judgment is affirmed.


         Appellee Le-Vel Brands LLC ("Le-Vel") filed this lawsuit against MacFarland in January 2016, asserting claims for defamation and business disparagement based on statements published on a website owned and operated by MacFarland. MacFarland filed a motion to dismiss pursuant to the TCPA, which motion was denied by the trial court. On interlocutory appeal, this Court reversed the trial court's denial of MacFarland's motion to dismiss, rendered judgment dismissing Le-Vel's claims, and remanded this case to the trial court for determination of the amount of attorney's fees, costs, expenses, and sanctions to be awarded to MacFarland pursuant to section 27.009(a). See MacFarland v. Le-Vel Brands LLC, No. 05-16-00672-CV, 2017 WL 1089684, at *19 (Tex. App.-Dallas Mar. 23, 2017, no pet.) (mem. op.); see also Civ. Prac. & Rem. § 51.014(a)(12) (allowing for interlocutory appeal of denial of motion to dismiss under TCPA).

         On remand, the trial court signed a June 15, 2017 order in which it "ordered . . . that pursuant to [section 27.009(a)], [MacFarland] recover attorneys' fees, costs, expenses, including from the appeal, and sanctions sufficient to deter [Le-Vel's] conduct in the future." Then, MacFarland filed an application for attorney's fees, costs, expenses, and sanctions. Therein, MacFarland stated in part,

[D]efendants who successfully fend off libel suits do not accrue, by settlement or judgment, a pot of money that can be divided with counsel under a traditional contingency fee arrangement. Consequently, mandatory fee shifting statutes like the TCPA provide a vital incentive for lawyers in private practice to defend these cases even when their clients cannot pay by the hour or the normal hourly rates, making them effectively contingent-fee cases. This is the situation, here.

         Additionally, MacFarland asserted in part (1) as the prevailing party on his motion to dismiss under the TCPA, he is entitled to recover "court costs, reasonable attorney fees, and other expenses incurred in defending against the legal action as justice and equity may require" and (2) he "incurred 159.2 hours in attorney time totaling $57, 135.00."

         Exhibits attached to MacFarland's application included (1) a February 2016 "Engagement Agreement for Legal Services"[2] signed by MacFarland and his attorney, Mateo Z. Fowler of MZF Law Firm, PLLC; (2) a May 2016 invoice sent to MacFarland by MZF Law Firm showing "40.8 total contingency services" and an "outstanding balance owed" of "$0.00"; (3) redacted time records of MZF Law Firm; and (4) a July 3, 2017 affidavit of Fowler in which he testified in part "[u]nder the terms of [the Engagement Agreement], MZF Law Firm's representation has been divided between defending the underlying lawsuit brought by Le-Vel Brands, LLC in the above styled matter on a reduced hourly rate and pursuing an offensive motion to dismiss under the [TCPA] with MZF Law Firm recovering its attorney fees out of any Court-awarded attorney's fees or sanctions."

         Le-Vel filed a response to MacFarland's application in which it stated in part (1) "incurred" in section 27.009 means "liable for payment"; (2) according to "MacFarland's counsel's own Engagement Agreement, time records, and lack of invoices, " MacFarland "was never liable for any fees related to the 'offensive' services, and he therefore never 'incurred' such fees"; and (3) MacFarland was "liable" only for payment of $325 in hourly fees pertaining to "defensive" legal services provided by MZF Law Firm and therefore "$325 is all he 'incurred' and $325 is all he can recover under the statute."

          At the hearing on MacFarland's application, Fowler argued in part, "This is a contingency interest in that . . . the time spent is already encumbered. There is a lien on this time to the extent that there are any attorney's fees award [sic]." Further, Fowler contended in part,

[T]his is not a pro bono case. . . . This was a client who agreed to pay hourly in defense of the litigation, and since he cannot pay my normal hourly rate, and we agreed I would work on the Motion to Dismiss, which carries mandatory fees and sanctions to the prevailing party, that I would work on that on a contingency fee.

         The trial court stated in part, "The actual fees that have been incurred to date, best I can tell, is this number of 375 [sic]." Following the trial court's award of attorney's fees of $325.00 described above, this appeal was timely filed.


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