Court of Appeals of Texas, Fifth District, Dallas
TODD M. FUHRMANN, BRIDGETTE KIRKPATRICK, KAREN E. DERRICK, AND MELVIN MCDANIEL, Appellants
C & J GRAY INVESTMENTS PARTNERS, LTD., Appellee
Appeal from the 59th Judicial District Court Grayson County,
Texas Trial Court Cause No. CV-13-0203.
Justices Whitehill, Partida-Kipness, and Pedersen, III
PEDERSEN, III JUSTICE.
Fuhrmann, Bridgette Kirkpatrick, Karen E. Derrick, and Melvin
McDaniel appeal a summary-judgment order that awarded
attorney's fees in favor of C & J Gray Investments
Partners, Ltd. (C & J Gray), the appellee. We affirm.
case involves approximately 212 acres of land in Grayson
County (the Property) and the associated mineral
estate. C & J Gray sued appellants and Speir
Investments, Ltd., seeking a declaratory judgment to quiet
title. Alternatively, it pled a cause of action for slander
of title. Appellants filed a counterclaim and requested a
declaratory judgment that ownership of the mineral estate
vested in them. They also asserted a trespass to try title
claim against C & J Gray. The parties filed competing
motions for summary judgment regarding (i) the ownership of
the mineral estate, and (ii) objections to some of the
summary-judgment evidence. The district court overruled
appellants' objections to C & J Gray's
summary-judgment evidence, denied appellants' motion for
summary judgment, granted C & J Gray's motion for
summary judgment, and declared, among other relief, that
title and ownership of the entire mineral estate of the
Property is currently vested in C & J Gray.
appealed the district court's order. We dismissed their
appeal for lack of jurisdiction. See Fuhrmann v. C &
J Gray Invs. Partners, Ltd. (Fuhrmann I), No.
05-14-00298-CV, 2014 WL 2048583, at *1 (Tex. App.-Dallas May
14, 2014, no pet.) (mem. op.). C & J Gray then dismissed
its claims against Speir Investments and filed a motion for
partial summary judgment on its claim for attorney's fees
under the Declaratory Judgments Act (DJA). See Tex.
Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (the
DJA). In support of its request for attorney's fees, C
& J Gray submitted an affidavit of its counsel, Scott
Pelley, who testified as an expert witness. Pelley averred
that $51, 000 was a reasonable and necessary amount of fees
"incurred in both the prosecution and the defense of
this declaratory judgment action." However, at the
hearing on the motion for summary judgment, C & J Gray,
through the argument of counsel, withdrew its request for $5,
100 in attorney's fees because those fees were related to
the trespass to try title and slander of title claims,
essentially conceding its summary judgment evidence included
fees that were not recoverable. The court granted C & J
Gray's motion and awarded it $45, 900 in attorney's
fees-i.e., the difference between $51, 000 and $5, 100-plus
contingent fees on appeal.
appealed the district court's judgment, which at that
point had become final. This Court reversed the judgment in
part and affirmed it in part. See Fuhrmann v. C & J
Gray Invs. Partners, Ltd. (Fuhrmann II), No.
05-15-01387-CV, 2016 WL 7217252, at *1, *12 (Tex. App.-
Dallas Dec. 13, 2016, pet. denied) (mem. op.). We held that,
under the circumstances, the district court could properly
consider, and award, C & J Gray attorney's fees under
the DJA. Id. at *10. However, we reversed the
portion of the court's judgment awarding C & J Gray
attorney's fees, based on the fact that its
summary-judgment evidence did not conclusively establish that
C & J Gray incurred $45, 900 in attorney's fees
relating to the declaratory judgment claims or that such fees
and costs were reasonable and necessary. Id. at
*11-12. We remanded the issue of fees for further
proceedings. Id. at *1, *12.
remand in the district court, C & J Gray filed a
"First Amended Motion on Remand for Partial Summary
Judgment on Attorney's Fees." The amended motion was
a traditional motion for partial summary judgment.
See Tex. R. Civ. P. 166a(c). It sought
attorney's fees of $88, 428.79, plus a conditional fee
award of $15, 000 in the event of an appeal to this Court and
an additional $10, 000 in the event of an appeal to the Texas
Supreme Court. C & J Gray's supporting evidence
included an affidavit from Pelley. According to C & J
Gray, this affidavit is identical to Pelley's affidavit
submitted in support of C & J Gray's original motion
for partial summary judgment, except that the Pelley
affidavit in support of the amended motion for partial
summary judgment contains additional averments regarding the
segregation of fees.
then filed an "Amended Answer and Response and
Objection" to C & J Gray's amended partial
summary-judgment motion. In support of this response,
appellants filed an affidavit of their counsel, Richard H.
Kelsey, who also testified as an expert witness. Kelsey
criticizes the Pelley affidavit and avers that it "fails
to conclusively show that the attorney's fees requested
are reasonable and necessary."
March 20, 2018, the district court signed an order that
granted C & J Gray's amended motion for partial
summary judgment and awarded its requested fees, as set forth
above.Appellants filed a motion for
reconsideration, which the court denied. This appeal
raise seven issues, each of which asserts a reason that the
district court purportedly erred in granting C & J
Gray's amended motion for partial summary judgment. We
review a trial court's summary judgment ruling de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656,
661 (Tex. 2005).
examining appellants' issues, we begin by summarizing the
Texas Supreme Court's recent decision in Rohrmoos
Venture v. UTSW DVA Healthcare, LLP, which addressed the
evidentiary standards for shifting attorney's fees.
S.W.3d, No. 16-0006, 2019 WL 1873428 (Tex. Apr. 26, 2019). To
secure an award of attorney's fees from an opponent, the
prevailing party must prove that: (1) recovery of fees is
legally authorized, and (2) the requested fees are reasonable
and necessary, so that the award will compensate the
prevailing party generally for its losses resulting from the
litigation process. Id. at *11.
lodestar method . . . applies for determining the
reasonableness and necessity of attorney's fees in a
fee-shifting situation." Id. at *22 (citing
El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760
(Tex. 2012)). This method involves a two-step inquiry in
determining what constitutes a reasonable attorney's fee.
Id. First, the fact-finder "'must determine
the reasonable hours spent by counsel in the case and a
reasonable hourly rate for such work.'" Id.
(quoting El Apple, 370 S.W.3d at 760). The
fact-finder "'then multiplies the number of such
hours by the applicable rate, the product of which is the
base fee or lodestar.'" Id. (quoting El
Apple, 370 S.W.3d at 760). The claimant bears the burden
of proving the reasonable hours worked and the reasonable
hourly rate. Id. at *20.
fact-finder "'may then adjust the base lodestar up
or down (apply a multiplier) if relevant factors indicate an
adjustment is necessary to reach a reasonable fee in the
case.'" Id. at *22 (quoting El
Apple, 370 S.W.3d at 760). However, the base calculation
is presumed to reflect the reasonable and necessary
attorney's fees, and considerations already incorporated
into this calculation may not be used to rebut this
presumption. Id. The claimant who seeks an upward
adjustment must produce "specific evidence" showing
the necessity of same, and the opponent who seeks a downward
adjustment must produce "specific evidence to overcome
the presumptive reasonableness of the lodestar figure."
Id. at *21.
to the merits of this appeal, we first consider two arguments
raised by appellants that do not neatly fit within their
seven issues. We will construe these arguments as included in
appellants' second issue, which contends that they
"were denied their right to trial by jury."
See Tex. R. App. P. 38.1(f) ("The statement of
an issue or point will be treated as covering every
subsidiary question that is fairly included.");
id. R. 38.9 (stating that "substantial
compliance" with Rule 38 is sufficient); Dallas Cty.
v. Crestview Corners Car Wash, 370 S.W.3d 25, 57 (Tex.
App.-Dallas 2012, pet. denied) ("We look to the issues
and the arguments and authorities in appellant's brief to
determine the grounds presented for appellate review and will
consider all issues fairly raised.").
appellants refer to the statement in C & J Gray's
amended motion for partial summary judgment that such motion
"is providing additional evidence of the segregation of
fees for work that is recoverable under the [D]A] and for
work that is not." Based on this statement, appellants
urge that C & J Gray used "the wrong procedure"
on remand because it did not file a "new"
summary-judgment motion with "new" evidence. To the
contrary, C & J Gray's amended motion superseded its
original motion, Gibson v. Park Cities Ford, Ltd.,
174 S.W.3d 930, 932 (Tex. App.-Dallas 2005, no pet.), and was
appellants contend that the amended motion's request that
"the Court . . . determine the amount of reasonable
attorney's fees that [C & J Gray] is entitled to
recover under the [D]A]" is not a statement of the
"specific grounds therefore," as is required by
Rule 166a(c) of the Texas Rules of Civil Procedure.
Tex.R.Civ.P. 166a(c). We conclude that the foregoing request
by C & J Gray was sufficient to comply with the rule.
overrule appellants' second issue to the extent it is
based on the foregoing procedural arguments.
Legal Authority for Fee Award
third issue contends that "[a] declaratory judgment
decreeing title will not support an award of attorney's
fees." As support, appellants rely on authority holding
that "when the trespass-to-try-title statute governs the
parties' substantive claims . . . [the plaintiff] may not
proceed alternatively under the Declaratory Judgments Act to
recover [its] attorney's fees." Coinmach Corp.
v. Aspenwood Apartment Corp., 417 S.W.3d 909, 926 (Tex.
2013) (citation and internal quotation marks omitted).
Appellants also made this argument in Fuhrmann II,
in which they claimed that C & J Gray was required to
bring a claim for trespass to try title or to quiet title,
rather than a claim for declaratory relief, and thus it
failed to show it was entitled to recover attorney's
fees. See 2016 WL 7217252 at *10. We noted that
appellants did not raise this argument until their motion for
new trial, which they filed after the district court granted
C & J Gray's summary-judgment motion. Id.
Under this circumstance, we held that the court could
properly consider, and award, C & J Gray attorney's
fees under the DJA. Id. Although we reversed the fee
award on the basis that C & J Gray's summary-judgment
evidence did not conclusively establish the amount of fees
incurred or that such fees were reasonable and necessary, the
scope of our remand was limited to these particular issues,
as opposed to whether C & J Gray's attorney's
fees were recoverable under the DJA. See id. at
*11-12 ("We . . . remand the cause to the trial court
for further proceedings consistent with this