lara-energy-inc-and-john-e-hearn-jr-v-yuma-petroleum-company-sam-l ( 2000 )

NUMBER 13-98-435-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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LARA ENERGY, INC. AND JOHN E. HEARN, JR., Appellants,

v.

YUMA PETROLEUM COMPANY, SAM L. BANKS,

YUMA RESOURCES, INC., YUMA PRODUCTION

1985, LTD., AND YUMA 1988 LEASE ACQUISITION

FUND, GULF STATES PRODUCTION COMPANY,

JAMES O. BLACKWELL, JR., A. B. COPLAND, Appellees,

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On appeal from the 2nd 25th District Court of Lavaca County, Texas.

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OPINION ON MOTIONS FOR REHEARING

Before Chief Justice Seerden and Justices Hinojosa and Yañez Opinion on Motions for Rehearing by Chief Justice Seerden

By motions for rehearing, both parties request that the Court clarify its opinion regarding the award of attorney's fees.

Yuma argues that the award of attorney's fees was not segregated among the various claims, as should be done if appellant prevails on only one contractual claim. See Oadra v. Stegall, 871 S.W.2d 882, 888 (Tex.App.--Houston [14^th Dist.] 1994, no writ)("[t]he general rule is that a party seeking to recover attorney's fees in a suit involving multiple claims or parties has a duty to segregate the fee award."). Yuma thus contends that this Court should remand the award of attorney's fees. See Stewart Guar. Title Co. v. Sterling, 822 S.W.2d 1, 10-11 (Tex. 1991)("[t]his court, however, has held that an award of attorney's fees erroneously based upon evidence of unsegregated fees requires a remand."). Yuma asks that the Court clarify its opinion to specify that it is remanding the issue of attorney's fees.

In response, Lara argues that Yuma failed to object to the lack of segregation, and thus waived any complaint about the award of attorney's fees. Lara argues that it is entitled to the full amount of attorney's fees previously awarded by the jury.

Generally, the party seeking attorney's fees has the duty to segregate the attorney's fees incurred for the claims where attorney's fees are recoverable from those where attorney's fees are not recoverable. See Stewart Title Guar. Co., 822 S.W.2d at 10-11; Flint & Assoc. v. Intercon. Pipe & Steel, 739 S.W.2d 622, 624 (Tex. App.--Dallas 1987, writ denied). An exception to the duty to segregate arises when the attorney's fees incurred involve claims arising out of the same transaction and their interrelation is such that their prosecution or defense entails proof or denial of essentially the same facts. Stewart Title Guar. Co., 822 S.W.2d at 11. Therefore, when the causes of action involved in the suit are dependent upon the same set of facts or circumstances and thus are "intertwined to the point of being inseparable," the party suing for attorney's fees may recover the entire amount covering all claims. Id.; McLendon v. McLendon, 862 S.W.2d 662, 673 (Tex.App.-Dallas 1993, writ denied).

It is generally true that where a case involves more than one claim, only fees attributable to authorized claims are recoverable. See International Sec. Life Ins. Co. v. Finck, 496 S.W.2d 544, 546-47 (Tex. 1973). However, a party failing to object to the failure to segregate attorneys' fees between authorized and unauthorized claims waives any appellate error. See Hruska v. First State Bank of Deanville, 747 S.W.2d 783, 785 (Tex. 1988).

Yuma failed to object to the jury question as to attorney's fees, thereby waiving appellate error. See Home Savings Ass'n. v. Guerra, 733 S.W.2d 134, 137 (Tex. 1987); Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 823 (Tex. 1985); Matthews v. Candlewood Builders, Inc., 685 S.W.2d 649, 650 (Tex. 1985). Yuma did not request an instruction requiring the jury to consider only attorney's fees attributable to recoverable claims, thus same was waived. See Miller v. Patterson, 537 S.W.2d 360, 364 (Tex. Civ. App.--Fort Worth 1976, no writ).

The motions for rehearing are overruled.

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ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion on Motions for Rehearing delivered

and filed this 25th day of May, 2000.