Randy K. Smith v. Lawrence Reid, Royce Reid, Jennifer Heath and THL GP Inc. ( 2015 )

ACCEPTED
04-13-00550-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/23/2015 11:48:47 AM
KEITH HOTTLE
CLERK
No. 04-13-00550-CV
IN THE COURT OF APPEALS
FOURTH COURT OF APPEALS JUDICIAL DISTRICT
SAN ANTONIO, TEXAS
RANDY K. SMITH,
Appellant/Defendant,
vs.
LAWRENCE REID, ROYCE REID, JENNIFER HEATH, AND THL GP
INC.,
Appellees/Plaintiffs.
__________________________________________
APPELLANT’S REPLY IN SUPPORT OF MOTION FOR
REHEARING/RECONSIDERATION EN BANC
TO THE HONORABLE COURT:
Appellant Randy K. Smith presents this short reply to address
two points raised by Appellees’ responsive briefing.
A. Appellee’s focus on the lack of an objection to fee
segregation is a nonstarter because the parties voluntarily
submitted the fees evidence in segregated form.
Appellees argue Smith waived his challenge to the sufficiency
of the attorney’s fees award by failing to object to fee segregation.1
Appellees also make a half-hearted attempt to argue that Smith waived his
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attorney’s fees complaint based on inadequate briefing. Resp. at 8. It is
noteworthy that Appellees made this same argument to the Panel in Appellees’
1
The Panel Opinion noted this omission, stating: “Itemized invoices
were presented in support of the entire amount awarded
($79,171.30), and Smith lodged no objection to the evidence at trial.
Thus, Smith has waived his segregation complaint on appeal.” Op.
at 20.
However, this “segregation waiver” is a red herring. Smith does
not complain of a lack of segregation. Indeed, the record shows that
the parties voluntarily segregated their fees, explaining to the trial
court the percentage of time spent on each of the claims. (3RR94)
(Appellees counsel stating, “I have also done a lot of thinking about
how that time [hours of attorney’s fees] was spent,” before breaking
down the total amount of fees requested into percentages based on
original briefing, despite the over 100 pages of briefing provided by Smith to
this Court addressing Smith’s complaints on appeal. Not surprisingly,
Appellees’ waiver arguments went unmentioned by the Panel in the issued
opinion. Smith suspects this omission occurred because the briefing provided
by Smith was clear and thorough, comprising both citation to authority and
the record, including the judgment, the fact findings, the conclusions of law,
and the evidence submitted by the parties. Smith Opening Br. & Reply Br.
Indeed, Smith’s briefing was sufficient enough to warrant a 21-page Opinion
from this Court. This Court should summarily reject Appellees’ waiver
contention because Smith’s briefing resoundingly complies with preservation of
appellate complaint rules and sufficiently raised Smith’s challenge to the
amount of attorney’s fees awarded. See TEX. R. APP. P. 38.1(i) (requiring brief to
contain clear and concise argument for the contentions made with appropriate
citations to authorities); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881
S.W.2d 279, 284 (Tex.1994) (discussing “long-standing rule” that issue may be
waived due to inadequate briefing).
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the varying causes of action). Thus, there was no need for an
objection to a failure to segregate by either party. Appellees point to
no case law requiring a segregation objection when the evidence is
already submitted in a segregated format.
The simple fact is that, in this case, the Judgment and the
Findings of Fact say it all. The Judgment demonstrates the trial
court awarded fees under only one cause of action: Chapter 38
(breach of contract). (3CR642) (“Under the discretionary powers of
the Court to award attorney’s fees under Chapter 38, the Plaintiffs
are awarded attorney’s fees . . . “) (emphasis added).
Although Appellees, on Rehearing, argue that the trial court’s
use of the word “discretionary” may indicate an intent to award fees
for the Declaratory Judgment action (Chapter 37),2 the Findings of
Fact resolve any questions that remain unanswered. Specifically,
the Findings of Fact corroborate Smith’s position that the Judgment
intended to award attorney’s fees based, not on the attorney’s fees,
2
Even if this Court follows Appellees’ position to its logical conclusion, the
attorney’s fees award must be reduced. Even if Appellees are correct that the
trial court intended to award fees under Chapter 37, which Smith strongly
disagrees with based on the express language in the Findings of Fact tying the
attorney’s fees to the breach of covenant claim, this Court must nonetheless
reduce the fees based on the segregation percentages testified to by Appellees’
trial counsel. (3RR94) (Appellees’ counsel testified that only 30% of the
attorney’s fees were incurred seeking “declarations”).
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but instead based on the breach of covenant claim. (3CR660) (The
FoF provide: “The agreement between RT Craig and Jay A. Blalock,
dated July 27, 1937, is an express covenant by Smith’s
predecessors in title Not to Claim Land by Adverse Possession.
Smith, in asserting a claim for adverse possession to land, breached
such express covenant, and in so breaching, Smith is liable for
attorney’s fees and costs under section 38.001 of the Texas Civil
Practice and Remedies Code.”).
The record tells this Court that only 10% of the attorney’s fees
were accrued on the cause of action elected by the trial court.
Appellees’ attorney testified that 10% of the attorney’s fees were
incurred in relation to Smith’s claim of adverse possession to the
“Bubble.” (3RR94). The remaining 90% of Appellees’ fees were
incurred for unrelated legal issues, some of which were abandoned
before trial (30%), defending against the 2011 County Road
Resolution (30%), and Appellees’ “affirmative claims . . . the request
for the TRO, the request for declarations, the boundary, defending
the easement by estoppel and defending against the legal effect of
the court-related items that were admitted a few minutes ago, the
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'78 statement and the '98 actions of the commissioners court.”
(30%). (3RR94).
Significantly, both parties used the same break down of
percentages when segregated what amount of fees were incurred for
each percentage of the case. (3RR98) (“In regard to the allocation of
time spent, I agree that Mr. Davis’ number in regard to the 10
percent is a good number on the amount of time and effort that was
spent on the adverse possession, the adverse possession claims.”).
Thus, arguing there was a “waiver” for failing to object to a lack of
segregation when the parties voluntarily segregated their fees is
perplexing and should be summarily ignored by this Court.
B. Appellees have never disputed that only 10% of attorney’s
fees was spent on the breach of covenant claim.
As detailed above, Appellees affirmatively testified that only
10% of all fees were incurred in prosecuting their breach of
covenant claim. (3RR94). Smith has pointed this fact out over and
over again in the briefing to this Court. Appellees have never
disputed this testimony. Instead, Appellees argue they are “entitled”
to 100% of the fees because they also prevailed on other claims.
This argument, however, ignores the fact that the trial court
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only awarded fees based on one claim – the Chapter 38 claim.
(3CR642 (Judgment); 3CR660 (FoF)). The trial court was clear in its
Judgment and its Findings of Fact that the award of attorney’s fees
was tied to the finding of liability against Smith for breach of
covenant. Id. To argue otherwise ignores the plain language of the
Judgment and the Findings of Fact. Id. Here, Appellees testified in
open court, under oath, (3RR90), that only 10% of the fees were
accrued for the breach of covenant claim. (3RR94). They cannot
now just “take back” that sworn testimony.
Thus, if this Court determines that Appellees’ breach of
covenant claim falls within Chapter 38, then the most attorney’s
fees that Appellees may be awarded based on the evidence
submitted is 10% of the amount sought: $8,761.33. (3RR91-93).
This Court has modified judgments to reflect reduced amounts
before and should consider doing so in this case. See Bill Miller Bar-
B-Q Enterprises, Ltd. v. Gonzales, No. 04-04-00747-CV, 2005 WL
2176079, *3 & n.3 (Tex. App. -- San Antonio 2005, pet. denied)
(unpublished) (holding evidence legally insufficient to support
entirety of award [$50,000], but reducing award to amount
supported by evidence[$24,000]).
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CONCLUSION
Smith respectfully requests this Court grant this Motion for En
Banc reconsideration, withdraw the Panel Opinion, and issue a new
Opinion either vacating the award of attorney’s fees altogether or, at
a minimum, modifying the award to remove the excess attorney’s
fees from the award to ensure that the amount of attorney’s fees
awarded comports with the evidence submitted at trial.
Respectfully submitted,
KELLER STOLARCZYK PLLC
234 West Bandera Road,
No. 120
Boerne, Texas 78006
Telephone: 830.981.5000
Facsimile: 888.293.8580
By: /s/Kimberly S. Keller
Kimberly S. Keller
SBN: 24014182
Email: kim@kellsto.com
Shane J. Stolarczyk
SBN: 24033242
Counsel for Appellant
CERTIFICATE OF SERVICE
I certify that Appellant’s Reply to Motion for En Banc
Reconsideration was served on those listed below on March 23,
2015 via this Court’s e-filing system and email/facsimile:
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Joe M. Davis
THE DAVIS LAW FIRM
P.O. Box 2349
Boerne, Texas 78006
Stephan B. Rogers
ROGERS & MOORE, PLLC
309 Waters St., Suite 114
Boerne, TX 78006
/s/Kimberly S. Keller
Kimberly S. Keller
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