Hossain Johari D/B/A Foxx Studio v. Ayva Center LLC ( 2020 )

Affirmed and Memorandum Opinion filed February 25, 2020.
In the
Fourteenth Court of Appeals
NO. 14-17-00912-CV
HOSSAIN JOHARI D/B/A FOXX STUDIO, Appellant
v.
AYVA CENTER LLC, Appellee
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 1076577
MEMORANDUM OPINION
Following a bench trial, the trial court awarded appellee Ayva Center LLC
$520.00 on its breach of contract and conversion claims against appellant “Hosain
[sic] Johari, individually and doing business as Foxx Studio,” and further awarded
Ayva $12,464.00 in attorney’s fees.1 Johari challenges the award of attorney’s fees
1
The notice of appeal clarifies there is only one defendant in the underlying lawsuit,
Hossain Johari d/b/a Foxx Studio: “In the style of Plaintiff’s Original Petition, Foxx Studio and
Hossain Johari were given as separate parties; although Foxx Studio is an assumed business
name of Hossain Johari.”
on the grounds that Ayva failed to segregate its fees by claim and the amount of
fees is excessive. We affirm.
I. BACKGROUND
Ayva brought suit against Johari for breach of contract, conversion, violation
of the Texas Theft Liability Act,2 and fraud, based on allegations that Johari
breached his agreement to provide photography services to Ayva and stole
property from Ayva. Johari filed counterclaims for breach of contract, quantum
meruit, and defamation. During the bench trial, Ayva introduced billing records
from its counsel showing hours worked and hourly rates for attorneys and
paralegals assigned to the case. Allan Cease, Ayva’s counsel at time of trial,
testified regarding his hours worked and billing rate for trial preparation and trial
(information that was not included in the admitted billing records), and requested
an award of attorney’s fees in the total amount of $12,464.00. Cease also testified
that Ayva’s claims were “inextricably intertwined” such that the requested fees
could not be segregated by claim. Johari did not object to the documentary
evidence regarding attorney’s fees or to the testimony of Cease concerning fees.
Following trial, the trial court signed its final judgment awarding Ayva
$120.00 for breach of contract, $400.00 for conversion, $12,464.00 in attorney’s
fees, and $800.00 in costs. The trial court did not award Johari any relief on his
counterclaims.
II. ANALYSIS
In his sole issue, Johari challenges the trial court’s award of attorney’s fees.
“Ordinarily, the allowance of attorney’s fees rests with the sound discretion of the
trial court and will not be reversed without a showing of abuse of that discretion.”
2
Tex. Civ. Prac. & Rem. Code Ann. §§ 134.001–.005.
2
Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990).
Johari first argues that the fee award should be reversed because Ayva did
not segregate recoverable from nonrecoverable fees. Typically, parties must
segregate attorney’s fees by claim “in a case containing multiple causes of action,
only some of which entitle the recovery of attorney’s fees.”3 See Green Int’l, Inc. v.
Solis, 951 S.W.2d 384, 389 (Tex. 1997). However, “if no one objects to the fact
that the attorney’s fees are not segregated as to specific claims, then the objection
is waived.” Id. (citing Hruska v. First State Bank of Deanville, 747 S.W.2d 783,
785 (Tex. 1988)). Johari did not object to Ayva’s failure to segregate fees in the
trial court, thereby waiving any challenge to the fees on that basis. See id.; see also
Tex. R. App. P. 33.1(a) (general rule for preservation of error).
Johari next argues that, under the lodestar method for calculating attorney’s
fees, the trial court erred by failing to reduce the amount of the fee award based on
Ayva’s limited success. The lodestar method applies “to any situation in which an
objective calculation of reasonable hours worked times a reasonable rate can be
employed.”4 Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469,
498 (Tex. 2019). “[T]here is a presumption that the base lodestar calculation, when
supported by sufficient evidence, reflects the reasonable and necessary attorney’s
fees that can be shifted to the non-prevailing party.” Id. at 499. However,
“exceptional circumstances” may justify enhancements or reductions to the base
lodestar. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 765 (Tex. 2012). “[I]f a fee
3
Ayva was entitled to recover attorney’s fees due to prevailing on its claim for breach of
contract. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (authorizing recovery of attorney’s
fees for successful breach-of-contract claim). Attorney’s fees, however, are generally not
available for conversion claims. See Broesche v. Jacobson, 218 S.W.3d 267, 277 (Tex. App.—
Houston [14th Dist.] 2007, pet. denied).
4
The parties do not dispute that Ayva used the lodestar method to support its application
for attorney’s fees.
3
opponent seeks a reduction, it bears the burden of providing specific evidence to
overcome the presumptive reasonableness of the base lodestar figure.” Rohrmoos
Venture, 578 S.W.3d at 501.
Johari does not challenge the base lodestar calculation of $12,464.00. Johari
argues that the trial court abused its discretion by failing to reduce the lodestar due
to the disproportion between the damages award of $520.00 and the fee award of
over $12,000.00. Our sister courts, however, have held consistently that
disproportion between the amount recovered and the amount of attorney’s fees will
not, on its own, justify reduction of the lodestar. See Young v. Sanchez, 04-10-
00845-CV, 2011 WL 4828021, at *6 (Tex. App.—San Antonio Oct. 12, 2011, no
pet.) (mem. op.) (“A disproportionate relationship between the amount of damages
and attorney’s fees awarded does not alone render the attorney’s fee award
excessive, and [appellants] cite no other factor to show the fee award was
unreasonable.”); Flatrolled Steel, Inc. v. Jones, 05-04-01175-CV, 2005 WL
1405742, at *2 (Tex. App.—Dallas June 16, 2005, no pet.) (mem. op.) (“Although
appellee was awarded $13,405.89 in actual damages and $38,716.28 in attorneys’
fees, disproportion alone does not render the award of attorneys’ fees excessive.”);
Gorman v. Countrywood Prop. Owners Assoc., 1 S.W.3d 915, 919 (Tex. App.—
Beaumont 1999, pet. denied) (mere fact that attorney’s fee award was multiple of
actual damages did not render fee award excessive).5 As Johari points us to no
other evidence supporting a reduction of the lodestar, we cannot conclude that the
trial court abused its discretion by failing to adjust the lodestar calculation.6 See
5
The Fifth Circuit agrees that, under Texas law, “disproportion alone does not render
[an] award of attorneys’ fees excessive.” Northwinds Abatement, Inc. v. Emp’rs Ins. of Wausau,
258 F.3d 345, 355 (5th Cir. 2001) (sitting in diversity and applying Texas law).
6
Johari cites Combs v. City of Huntington for the proposition that a low damages award
may warrant reduction in the base lodestar. 829 F.3d 388 (5th Cir. 2016). Combs, however,
involved a reduction in the lodestar based on a comparison between damages awarded and
4
Rohrmoos Venture, 578 S.W.3d at 501.
We overrule Johari’s issue.
III. CONCLUSION
We affirm the trial court’s judgment.
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Zimmerer, and Spain.
damages sought, not a comparison between damages awarded and fees awarded as argued here
and disapproved of by Texas courts. See id. at 395–96.
5