Sustainable Texas Oyster Resource Management, LLC (STORM) v. Hannah Reef, Inc., Shrimps R. US, Inc., Ivo Slabic & Michael Ivic
CourtTexas Court of Appeals, 1st District (Houston)
Date FiledAugust 31, 2026
Docket01-23-00842-CV
StatusPublished
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Full Opinion
Opinion issued August 31, 2026
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00842-CV
———————————
SUSTAINABLE TEXAS OYSTER RESOURCE MANAGEMENT, L.L.C.,
Appellant
V.
HANNAH REEF, INC., SHRIMPS R US, INC., IVO SLABIC, AND
MICHAEL IVIC, Appellees
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Case No. 15-CV-0772
MEMORANDUM OPINION
This is the second appeal in this dispute between appellant, Sustainable Texas
Oyster Resource Management, L.L.C. (“STORM”) and appellees, Hannah Reef,
Inc., Shrimps R Us, Inc., Ivo Slabic, and Michael Ivic (collectively, “the
1
Oystermen”). In the previous appeal, this Court affirmed the trial court’s judgment
in part, reversed the judgment in part, and remanded the case to the trial court for a
new trial limited to the issue of the Oystermen’s reasonable and necessary attorney’s
fees under the Uniform Declaratory Judgments Act (“UDJA”).1 See Sustainable
Tex. Oyster Res. Mgmt., L.L.C. v. Hannah Reef, Inc., 623 S.W.3d 851 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied). On remand, after a jury trial, the trial court
entered a final judgment, awarding the Oystermen $340,000 in attorney’s fees and
$40,000 in conditional appellate attorney’s fees.
Now, in six issues, STORM challenges the trial court’s award of attorney’s
fees to the Oystermen on the grounds that: (1) the trial court erred in failing to
include STORM’s requested lodestar instruction and lodestar question in the court’s
charge to the jury; (2) the evidence was legally insufficient to support the award of
attorney’s fees; (3) the evidence was factually insufficient to support the award of
attorney’s fees; (4) the Oystermen failed to segregate their fees; (5) the redacted
billing records admitted into evidence were hearsay and untrustworthy, and
therefore, inadmissible; and (6) notwithstanding the law-of-the-case doctrine, an
award of attorney’s fees was not available to the Oystermen under the UDJA.2
1
TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (“In any proceeding under this
chapter, the court may award costs and reasonable and necessary attorney’s fees as
are equitable and just.”).
2
The Oystermen did not file an appellees’ brief.
2
We affirm.
Background
The underlying dispute in this case concerned the parties’ competing rights to
cultivate and harvest oysters in certain areas of Galveston and Trinity Bays. A
detailed recitation of the historical facts and trial court proceedings through the first
trial is set forth in our prior opinion and therefore we provide only the background
necessary to resolution of this appeal.
On July 24, 2015, the Oystermen filed suit against STORM, asserting claims
to quiet title, for trespass to try title, and for tortious interference with prospective
business relations.3 The Oystermen also sued under the UDJA, seeking declaratory
relief, as well as requested injunctive relief, monetary damages, and attorney’s fees.4
STORM counterclaimed, asserting claims for trespass, conversion, money had and
received, and accounting.5 The Oystermen filed a partial motion for summary
judgment in which they requested that, pursuant to the UDJA, the trial court declare
the Coastal Surface Lease issued by Chambers–Liberty Counties Navigation District
to STORM, authorizing STORM to cultivate and harvest oysters on 23,000 acres of
3
See Sustainable Tex. Oyster Res. Mgmt., L.L.C. v. Hannah Reef, Inc., 623 S.W.3d
851, 857 (Tex. App.—Houston [1st Dist.] 2020, pet. denied).
4
See id.
5
See id. at 859.
3
submerged land in Galveston and Trinity Bays, void and unenforceable.6 STORM
filed a combined response to the Oystermen’s partial motion and a countermotion
for summary judgment.7
On September 28, 2016, the trial court granted partial summary judgment in
the Oystermen’s favor, specifically, granting the relief requested under the UDJA
and ordering that STORM take nothing on its counterclaims.8 The trial court signed
an order denying STORM’s countermotion for summary judgment the same day.9
Relevant here, in its partial summary judgment order, the trial court ruled that the
Oystermen “shall recover from . . . STORM their reasonable and necessary attorney
fees and costs under the [UDJA] TEX. CIV. PRAC. & REM. CODE ANN. § 37.009.”10
The case was called for a jury trial on November 13, 2017.11 The Oystermen’s
live pleading alleged causes of action for quiet title and trespass-to-try-title.12 The
previously pleaded tort claims of tortious interference and conspiracy had been
6
See id. at 859–60.
7
See id. at 860.
8
See id.
9
See id.
10
Id.
11
See id. at 861.
12
See id.
4
abandoned.13 Damages were no longer pleaded, but the petition continued to request
declaratory and injunctive relief along with attorney’s fees pursuant to the UDJA.14
At the beginning of trial, the Oystermen informed the trial court that they were
not pursuing their claims for quiet title and trespass-to-try-title, indicating to the trial
court that the declaratory relief granted in the earlier partial summary judgment order
had provided them adequate relief.15 And the only issue remaining for trial was the
amount of reasonable and necessary attorney’s fees the Oystermen were entitled to
recover under the UDJA.16
The issue of reasonable and necessary attorney’s fees was tried to a jury.17 In
support of the Oystermen’s attorney’s fees request, George W. Vie III (“Vie”), one
of the Oystermen’s attorneys, testified as their attorney’s fees expert.18 He opined
that the reasonable and necessary attorney’s fees incurred by the Oystermen since
the suit was filed was $417,000.19 The Oystermen offered billing records to support
13
See id.
14
See id.
15
See id.
16
See id.
17
See id. at 855.
18
See id. at 861.
19
See id.
5
the requested fees.20 Vie also provided testimony to support an award of conditional
appellate attorney’s fees.21
On cross-examination, STORM asked Vie whether he had segregated the
attorney’s fees between claims on which attorney’s fees may be recovered and those
for which they may not.22 Vie responded that he had not segregated the fees because
segregation was not necessary in this case.23 On redirect examination, Vie testified
that he believed segregation was not necessary because the attorney’s fees incurred
for claims for which attorney’s fees are not recoverable also “advanced the merits of
the [UDJA] claim” for which the Oystermen were entitled to recover attorney’s
fees.24
STORM moved for directed verdict on the Oystermen’s attorney’s fees
claim.25 Among its arguments, STORM objected that the Oystermen were required
20
See id.
21
See id.
22
See id.
23
See id.
24
Id. at 861–62.
25
See id. at 862.
6
to segregate their attorney’s fees and had failed to do so.26 The trial court overruled
STORM’s motion.27
STORM presented the testimony of J. Studer, an attorney’s fees expert.28
Studer testified that he had reviewed the billing records of the Oystermen’s attorneys
and had concluded that the attorney’s fees requested by the Oystermen were not
reasonable and necessary.29 Studer testified that the reasons for his opinion included
that the Oystermen were requesting attorney’s fees “not necessary and not related to
the claim for which they’re making claim on fees.”30 He stated that it was his opinion
that the Oystermen were “making [a] claim for fees for efforts that are related to
issues or parties that [they] abandoned and that did not advance the claim for [which]
they’re seeking fees today.”31
The jury found that the Oystermen’s reasonable and necessary attorney’s fees
for the trial court proceedings was $417,000 and that the Oystermen were entitled to
conditional appellate attorney’s fees for different stages of appeal, totaling
26
See id.
27
See id.
28
See id.
29
See id.
30
Id.
31
Id.
7
$75,000.32 The trial court’s final judgment incorporated the jury’s findings and
awarded the Oystermen $417,000 in attorney’s fees for proceedings through trial
and a total of $75,000 in conditional appellate attorney’s fees “pursuant to the
[UDJA].”33
B. First Appeal
STORM presented five issues in its first appeal. Among its challenges,
STORM argued that the trial court erred in awarding attorney’s fees to the
Oystermen under the UDJA because they failed to segregate the fees between
recoverable and unrecoverable fees.34
We agreed with STORM that evidence of fee segregation was required.35 We
noted:
If any attorney’s fees relate solely to a claim for which such fees
are unrecoverable, a claimant must segregate recoverable from
unrecoverable fees. Intertwined facts do not make tort fees recoverable;
it is only when discrete legal services advance both a recoverable and
unrecoverable claim that they are so intertwined that they need not be
segregated.36
32
See id.
33
Id.
34
See id. at 855.
35
See id. at 873.
36
Id. at 872 (internal citations and quotations omitted).
8
We concluded that because “[d]iscrete legal services were expended to
advance claims for which fees were not recoverable,” the Oystermen were required
to present evidence of the segregation of their attorney’s fees.37 Because they had
not done so, we reversed the portion of the trial court’s judgment awarding attorney’s
fees, including conditional appellate attorney’s fees, and remanded the case to the
trial court for a new trial limited to the issue of the Oystermen’s reasonable and
necessary attorney’s fees.38 Having overruled STORM’s other four issues, we
affirmed the remainder of the trial court’s judgment.39
C. Retrial
On remand, the trial court held a second jury trial on the issue of the
Oystermen’s reasonable and necessary attorney’s fees. As in the first trial, Vie
testified as the Oystermen’s attorney’s fees expert, and the Oystermen offered billing
records to support the requested fees.
Vie testified that he graduated from University of Texas Law School in 1988
and was licensed to practice law in Texas in 1989. Vie became board certified in
civil appellate law in 1995 and has been continuously board certified.
37
Id. at 873–74.
38
See id. at 876.
39
See id.
9
Vie introduced Plaintiff’s Exhibit No. 1, which he testified consisted of copies
of contemporaneous billing records from two law firms, Feldman and Feldman, the
lead firm, and Mills Shirley, the local firm. Vie explained that the billing records
covered the period from July 2015, when the case began, until the time of trial in
late 2017, but they did not include the first trial or appeal. Vie testified that the first
page of the exhibit was a one-page summary listing the attorneys, the time period of
the invoice, the invoice number, the fee amount, the expenses, and the total of that
invoice.
Vie further testified that he had worked as an attorney for both law firms at
different times. He stated that he was testifying as a custodian of records for both
firms, the copies of the billing records were true and correct copies of the documents,
and they were prepared by individuals with personal knowledge of them at the time
they were made.
STORM’s counsel objected to the admission of the billing records on the
ground that the records were redacted and therefore untrustworthy. The trial court
overruled STORM’s objection and admitted Plaintiff’s Exhibit No. 1 into evidence.
Vie testified that he reviewed the billing records before they were redacted.
He also testified that redaction of the billing records was necessary to preserve
attorney-client privilege and attorney work product in this case.
10
Vie explained that the billing records reflected the work performed by
partners, associates, contract attorneys, paralegals, and legal assistants on the case.
He testified that billing rates differed depending on the person’s title and years of
experience, and the number of hours worked depended on the role the person
performed in the case. Vie testified that one partner at Feldman and Feldman with
40 years’ experience worked 80 hours on the case and his billing rate was $500 an
hour; another partner with 18 years’ experience, and who was the lead attorney at
trial, worked 338 hours and his billing rate was $400 an hour; an associate with 2
years’ experience performed 874 hours of work and her billing rate was $250 an
hour; a contract attorney with 11 years’ experience worked 61 hours on the case and
her billing rate was $250 an hour; a law clerk, who was a third-year law student,
performed 88 hours of work which was billed at $75 an hour; and a legal assistant
worked 13.75 hours on the case at a billing rate of $150 an hour. Vie testified that
three partners at Mills Shirley worked on the case during this time at an hourly billing
rate of $300—one partner with 40 years’ experience worked 116 hours, one partner
worked 6 hours, and Vie, the third partner, worked 835 hours—and two paralegals
worked on the case at a billing rate of $100 an hour. Vie testified that after the
discounts for services and discounts given to the client were applied, the total net
billing for Feldman and Feldman was $399,000 and the total net billing for Mills
Shirley was $65,980. Vie testified that the services rendered included pleading
11
practice, motion practice, and discovery practice, as well as internal discussions
about the case such as tactics and strategy. In his opinion, the services rendered were
necessary and the rates charged by the attorneys, law clerks, legal assistants, and
paralegals for similar services were reasonable for attorneys and staff in the legal
community. Vie testified that adjustments were made to the fee application
submitted to the trial court which reduced the total amount of the attorney’s fees
sought by the Oystermen to $428,000.
Vie testified about the factors an attorney must consider when determining a
reasonable fee to charge a client, which include: (1) the time and labor required, the
novelty of the questions involved, and the skills necessary to perform the work; (2)
the likelihood that accepting the particular employment will preclude other
employment; (3) the fee customarily charged in the locality for similar legal services,
(4) the amount involved and the results obtained; (5) the time limitations imposed
by the client or the circumstances; (6) the nature and length of the professional
relationship with the client; (7) the experience, reputation, and ability of the lawyer
or lawyers performing the services; and (8) whether the fee is fixed or contingent on
the results obtained or the uncertainty of collection before the legal services have
been rendered.
Vie testified that in addition to the UDJA claim, the Oystermen asserted a
trespass-to-try title claim and several tort claims. He explained that Texas law does
12
not permit the recovery of attorney’s fees for certain types of claims, including
trespass-to-try-title claims and some tort claims. He stated that if a lawsuit involves
claims that allow recovery of attorney’s fees and claims that do not, an attorney must
segregate the time spent on the claims for which attorney’s fees are recoverable from
the time spent on claims for which attorney’s fees are not recoverable. Vie explained
that, to segregate fees, an attorney must provide a rough estimate or an
approximation of the percentage of work that was done in relation to the claims for
which attorney’s fees are not recoverable. Vie testified that he was therefore
required to subtract a percentage of the total attorney’s fees for work done on the
trespass-to-try-title claim and tort claims. Vie testified that it was his opinion that
30% of the time spent on the case was spent on the claims for trespass-to-try-title,
civil conspiracy, and other tort claims pleaded for which attorney’s fees were not
recoverable. Vie stated that his estimate was based on a review of the claims asserted
and the amount of work performed as well as doing a word search for “trespass to
try title” in the billing records. Vie opined that based on his experience in the case,
the issues presented on appeal, and the billing records in Plaintiff’s Exhibit No. 1,
30% of the total amount of attorney’s fees, or $141,240, should be deducted, leaving
an attorney’s fees award of $286,760.
Vie testified that the next stage was the trial, which was held in November
2017 and lasted three-and-a-half or four days. He stated that the attorney’s fees
13
billed for trial totaled $36,000, which consisted of 40 hours of work done by a partner
at Feldman and Feldman at a billing rate of $400 and 80 hours of work done by an
associate at a rate of $250 an hour. Vie explained that although the Oystermen
received a favorable judgment at the first trial, because the court of appeals
remanded the case for segregation of fees, the Oystermen were not seeking to shift
the attorney’s fees billed for the first trial to STORM.
Vie testified that two of the attorneys rendered post-judgment services in
January 2018. Vie explained that STORM, having received an adverse verdict, filed
a motion for new trial and a motion to modify the judgment which are the predicate
to an appeal. Vie testified that one partner at Feldman and Feldman spent 2.75 hours
at a billing rate of $400 and one associate spent 27 hours at a billing rate of $250 on
the post-judgment services, for which they billed a total of $7,850. Vie opined that
the services provided before appeal were necessary, and the rates that were charged
by the two attorneys were reasonable rates in the legal community for those services.
Vie testified that the next stage of the case after the post-judgment work was
the appeal. Vie stated that he handled the appeal in the case. He explained that work
on the appeal involved conducting legal research and preparing a brief to submit to
the court of appeals. Vie testified that he worked a total of 104 hours, and at a billing
rate of $400, the Oystermen incurred $41,600 in attorney’s fees for work done on
14
the appeal. It was Vie’s opinion that his billing rate was a reasonable rate in the
community for a board-certified appellate attorney with his experience.
Vie explained that STORM presented five issues on appeal, and the
Oystermen prevailed on four of the issues, but they did not prevail on STORM’s
challenge to the attorney’s fees award. Vie testified that he therefore deducted 20%
of the amount billed for the appeal to account for the portion of the appeal on which
the Oystermen did not prevail. Vie explained that STORM filed a petition for review
in the Texas Supreme Court, which was denied, and that he did not do much briefing
in the supreme court. He testified that after deducting 20% from $41,600, the
remaining amount billed was $33,280 for the work on the appeal.
Vie testified that after the case was remanded, he spent 9.75 hours to prepare
for the retrial, at a billing rate of $400 an hour, for a total of $3,900. Vie concluded
that based on the work performed since 2015 (including adjustments made and a
30% deduction for work done on the claims for which attorney’s fees were not
recoverable), not charging for the work performed for trial, and adding the work
done on appeal (minus 20% for the issue on which the Oystermen did not prevail)
and on retrial, the Oystermen submitted a fee application seeking a total award of
attorney’s fees of $331,790.
Vie also testified about conditional appellate attorney’s fees. He stated that
based on his experience in handling appeals, his knowledge about the case, the length
15
of the first trial, and the issues he anticipated might be raised in a second appeal, it
was his opinion that the entire appellate process would take 40 hours; at a billing
rate of $400 an hour, conditional appellate attorney’s fees for the court of appeals
would be $16,000. Vie testified that it was his opinion that filing a petition for
review in the Texas Supreme Court would require 10 to 12 hours, so conditional
appellate attorney’s fees at a billing rate of $400 an hour would be $4,800. Vie
further testified that full merits briefing to the Texas Supreme Court would take 40
hours; at a billing rate of $400 an hour, conditional appellate attorney’s fees would
be $16,000. Vie opined that if oral argument was requested, it would require 8 hours
to prepare and argue; at a billing rate of $400, conditional appellate attorney’s fees
for that stage would be $3,200.
STORM did not call any witnesses in its case-in-chief or introduce any
evidence at trial.
After both sides rested, the trial court held a charge conference. STORM
objected to the Oystermen’s proposed jury charge on the grounds that (1) the
proposed instruction and question were erroneous because they constituted a
comment on the weight of the evidence; (2) the charge omitted STORM’s requested
lodestar instruction and lodestar question; (3) the evidence was legally insufficient
to support an award of attorney’s fees; (4) the evidence was factually insufficient to
support an award of attorney’s fees; (5) the evidence presented was conclusory; (6)
16
the evidence of the segregation of fees between recoverable and unrecoverable
claims was insufficient; and (7) Vie’s expert testimony was merely ipse dixit
unsupported by sufficient data. The trial court overruled STORM’s objections and,
orally and in writing, it refused STORM’s request to include the requested lodestar
instruction and lodestar question in its charge to the jury.
At the conclusion of trial, the jury returned a verdict in favor of the Oystermen.
The jury answered as follows:
QUESTION 1
The Court has previously determined that Plaintiffs are entitled
to declaratory judgment under Texas Civil Practice & Remedies Code
Chapter 37.
The Court has further previously determined that Plaintiffs are
entitled to an award of reasonable and necessary attorney’s fees, if any,
pursuant to Texas Civil Practice & Remedies Code § 37.009.
What is a reasonable fee for the necessary legal services of the
Plaintiffs’ attorneys?
A reasonable fee is the reasonable hours worked, and to be
worked, multiplied by a reasonable hourly rate for that work.
Do not include fees that relate solely to any other claim.
Answer with an amount for each of the following:
a. For preparation and trial.
ANSWER: $ $340,000
b. For an appeal to the Court of Appeals.
17
ANSWER: $ $16,000
c. For a Petition for Review to Supreme Court of Texas.
ANSWER: $ $4,800
d. If merits briefing is requested by the Supreme Court of Texas.
ANSWER: $ $16,000
e. If oral argument is requested by the Supreme Court of Texas.
ANSWER: $ $3,200
The Oystermen moved for entry of judgment. The trial court signed its final
judgment on remand, awarding reasonable and necessary attorney’s fees to the
Oystermen under Chapter 37 of the Texas Civil Practice and Remedies Code as
follows:
1. Reasonable and necessary attorney’s fees in the amount of $340,000
for services rendered in this case through entry of judgment.
2. Additionally, attorney’s fees for services on appeal are awarded
when [the Oystermen] have prevailed on appeal at one of more of these
stages: $16,000 for appeal to the Court of Appeals; $4,800 if a party
files a Petition for Review to the Supreme Court of Texas; $16,000 if
the Supreme Court requests briefing on the merits in connection with a
Petition for Review; and $3,200 if oral argument is requested by the
Supreme Court of Texas.
The trial court found the fees to be equitable and just under Texas Civil Practice and
Remedies Code Section 37.009. It further ordered that the Oystermen recover from
STORM post-judgment interest and courts costs.
18
STORM moved for a new trial, to disregard the jury’s verdict, and for
judgment non obstante veredicto (“JNOV”) after remand. The motions were
overruled by operation of law.
Requested Jury Instruction and Question
In its first issue, STORM asserts that the trial court erred by refusing to include
its requested lodestar instruction and lodestar question in the court’s charge to the
jury. According to STORM, the trial court’s failure to include the requested
instruction and question probably caused the rendition of an improper judgment or
prevented it from properly presenting its case to the court of appeals.
A. Standard of Review
We review jury charge error for an abuse of discretion. See Thota v. Young,
366 S.W.3d 678, 687 (Tex. 2012). A trial court abuses its discretion if it acts in an
arbitrary and unreasonable manner or if it acts without reference to any guiding rules
or principles. See King Fisher Marine Serv., L.P. v. Tamez, 443 S.W.3d 838, 850
(Tex. 2014). To determine whether an alleged error in a charge is reversible, we
must consider the pleadings, the evidence at trial, and the charge in its entirety.
Klentzman v. Brady, 456 S.W.3d 239, 265 (Tex. App.—Houston [1st Dist.] 2014),
aff’d, 515 S.W.3d 878 (Tex. 2017). For harm to result, the error must have probably
caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1).
19
B. Procedural Framework
Texas Rules of Civil Procedure 277 and 278 provide the framework for
obtaining an instruction and question in a jury charge. Under Rule 277, a trial court
must submit instructions and definitions “as shall be proper to enable the jury to
render a verdict.” TEX. R. CIV. P. 277. “This rule . . . affords the trial court
considerable discretion in deciding what instructions are necessary and proper in
submitting issues to the jury.” State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451
(Tex. 1997). “A trial court should submit explanatory instructions when in its sole
discretion, it determines that the instructions will help the jury to understand the
meaning and effect of the applicable law and presumptions.” KBIDC Invests., LLC
v. Zuru Toys Inc., No. 05-19-00159-CV, 2020 WL 5988014, at *18 (Tex. App.—
Dallas Oct. 9, 2020, pet. denied) (mem. op.); see also Sam Rayburn Mun. Power
Agency v. Gillis, No. 09-16-00339-CV, 2018 WL 3580159, at *12 (Tex. App.—
Beaumont July 26, 2018, pet. denied) (mem. op.). A jury should not be burdened
with surplus instructions, even those that accurately state the law. See Li v. TGS-
NOPEC Geophysical Co., --- S.W.3d ---, ---, 2026 WL 110680, at *2 (Tex. App.—
Houston [1st Dist.] Jan. 15, 2026, pet. denied). Consequently, every correct
statement of law does not necessarily belong in the jury charge. Gillis, 2018
3580159, at *12; see also KBIDC Invests., 2020 WL 5988014 at *18 (“Trial courts
20
should refuse to submit unnecessary instructions, even if the instructions are legally
correct statements.”).
Under Rule 278, a party is entitled to a jury question, instruction, or definition
if the written pleadings and evidence raise the issue. See TEX. R. CIV. P. 278. Jury
questions submitted must: (1) control the disposition of the case; (2) be raised by the
pleadings and the evidence; and (3) properly submit the disputed issues for the jury’s
determination. Spradley v. Michael E. Orsak, LP, No. 01-19-00186-CV, 2020 WL
7349490, at *6 (Tex. App.—Houston [1st Dist.] Dec. 15, 2020, no pet.) (mem. op.).
The failure to submit a question or instruction is not a ground for reversal unless its
submission, in substantially correct wording, was requested in writing and tendered
by the complaining party. Id.; Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166
(Tex. 2002).
C. Analysis
Prior to trial, STORM submitted in writing the following requested proposed
instruction and question to be included in the court’s charge to the jury:
D. Instruction Regarding Question ___.
[Q__ Instr. ___] You are instructed that for determining the
reasonableness and necessity of attorney’s fees in a fee-shifting
situation, what constitutes a reasonable attorney’s fee involves two
steps. First, you must determine the reasonable hours spent by counsel
in the case, if any, and a reasonable hourly rate for such work, if any.
Charges for duplicative, excessive, or inadequately documented work
should be excluded. If you determine a reasonable number of hours
and a reasonable hourly rate for such work, then you should multiply
21
the number of such hours by the applicable rate, the product of which
is called the base fee or lodestar. The base calculation should reflect a
reasonable hourly rate for the attorney to prosecute or defend
successfully against the claim at issue. You may then adjust the base
lodestar up or down - by applying a multiplier - if relevant factors
indicate an adjustment is necessary to reach a reasonable fee in the case.
You are instructed that the base lodestar figure is presumed to represent
reasonable and necessary attorney’s fees but other considerations may
justify an enhancement or reduction to the base lodestar. Accordingly,
you must then determine whether evidence of those considerations
overcomes the presumption and necessitates an adjustment to reach a
reasonable fee.
Question __
What is the base fee or lodestar?
Answer by stating in the number of hours and the hourly rate:
Number of Hours _______
Hourly Rate __________
At the charge conference, STORM objected to omission of its requested
lodestar instruction and lodestar question from the proposed jury charge. The
Oystermen responded that the requested instruction and question were not in
substantially correct wording. They argued that it was within the trial court’s
discretion to decide what instructions are necessary and proper, and even if the
requested instruction and question were substantially correct, it did not mean that
they belonged in the court’s charge. They further argued that a jury question should
be in broad form, whenever feasible, and STORM’s requested lodestar question was
not in broad-form submission. The trial court overruled STORM’s objection and
22
did not include the requested lodestar instruction and lodestar question in its charge
to the jury.
In its brief on appeal, STORM asserts that the trial court had a duty to include
its requested lodestar instruction and lodestar question. In support of its argument,
STORM points to the following language in the Texas Supreme Court’s decision in
Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019),
addressing application of the lodestar method in a fee-shifting situation:
[T]he fact finder must first determine a base lodestar figure based on
reasonable hours worked multiplied by a reasonable hourly rate. In a
jury trial, the jury should be instructed that the base lodestar figure is
presumed to represent reasonable and necessary attorney’s fees, but
other considerations may justify an enhancement or reduction to the
base lodestar; accordingly, the fact finder must then determine whether
evidence of those considerations overcomes the presumption and
necessitates an adjustment to reach a reasonable fee.
Id. at 501.
We disagree that Rohrmoos created an absolute duty to submit a specific
lodestar instruction and lodestar question on the request of a party. When a trial
court refuses to submit a requested instruction, the question on appeal is whether the
instruction was reasonably necessary “to enable the jury to render a proper verdict.”
TEX. R. CIV. P. 277; see Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d
909, 912 (Tex. 2000); Spradley, 2020 WL 7349490, at *6. For an instruction to be
proper, it must: (1) assist the jury; (2) accurately state the law; and (3) find support
in the pleadings and the evidence. TEX. R. CIV. P. 278 (“Failure to submit a
23
definition or instruction shall not be deemed a ground for reversal of the judgment
unless a substantially correct definition or instruction has been requested”);
Mandlbauer, 34 S.W.3d at 912.
Here, the trial court’s charge instructed the jury as follows: “The Court has . .
. previously determined that [the Oystermen] are entitled to an award of reasonable
and necessary attorney’s fees, if any, pursuant to Texas Civil Practice & Remedies
Code § 37.009. What is a reasonable fee for the necessary legal services of the
[Oystermen’s] attorneys? A reasonable fee is the reasonable hours worked, and to
be worked, multiplied by a reasonable hourly rate for that work.”
On this record, we cannot conclude that the trial court abused its discretion by
not including STORM’s requested instruction or question. The jury did not need the
instruction to understand the meaning or effect of law. Further, the question on
reasonable and necessary attorney’s fees submitted to the jury closely tracked
language from the Texas Pattern Jury Charges (“PJC”). See Comm. on Pattern Jury
Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer,
Insurance & Employment, PJC 115.47 (2014).40 By answering with an amount for
4040
PJC 115.47 asks: “What is a reasonable fee for the necessary services of [client’s]
attorney, stated in dollars and cents?” State Bar of Tex., Tex. Pattern Jury Charges:
Business, Consumer, Insurance, Employment, PJC 115.47 (2014). Although the
PJC is not “law,” it is heavily relied upon by bench and bar, and is based on what
the State Bar Committee perceives the present law to be. See Shelby Distribs., Inc.
v. Reta, 441 S.W.3d 715, 720 (Tex. App.—El Paso 2014, no pet.); THI of Tex. at
24
each category, the jury indicated what sum it found to be a reasonable and necessary
fee for the legal services provided by the Oystermen’s attorneys.
STORM concedes that it could not find authority discussing this exact issue
but suggests there is “an emerging trend” among courts of appeals to reverse
attorney’s fees awards where the trial court was the fact finder and did not apply the
lodestar method. It cites Challis v. Fiamma Statler, LP, 02-22-00047-CV, 2023 WL
2534470 (Tex. App.—Fort Worth Mar. 16, 2023, no pet.) (mem. op.) and Asta
Partners, LLC v. Palaniswamy, No. 02-20-00371-CV, 2021 WL 5133888 (Tex.
App.—Fort Worth Nov. 4, 2021, no pet.) (mem. op) in support of its assertion.
In Challis, the trial court, on remand, awarded $74,109.87 in trial attorney’s
fees and $40,600 in appellate attorney’s fees to appellants, which was approximately
9.6% of appellants’ proven incurred fees. See Challis, 2023 WL 2534470, at *5.
Appellants argued that the amount of the attorney’s fees award on remand was
against the great weight and preponderance of the evidence. See id. at *1. The court
of appeals agreed, noting that the trial court made findings of fact and conclusions
of law to support its award, but the findings and conclusions did not explain how the
trial court arrived at the $114,709.87 figure. See id. at *5. The court further noted
that the disproportionate nature of the trial court’s award pointed to another issue as
Lubbock I, LLC v. Perea, 329 S.W.3d 548, 569 (Tex. App.—Amarillo 2010, pet.
denied).
25
well: the court’s failure to apply the lodestar analysis. See id. at *6. Specifically,
the trial court’s findings did not identify the reasonable number of hours worked and
did not identify a reasonable hourly rate; instead, the only hourly rates recited in the
trial court’s findings were the billing rates charged by appellants’ legal team. See
id. The court opined that “given the size of the fee award, it seems safe to say that
the trial court did not adopt [appellants’] billing rates. . . . In short, we have no idea
how the trial court came to its award figure, but it does not appear to have been
through application of the lodestar method to the evidence proffered by the parties.”
Id. at *6. After noting that appellants had used the lodestar method, addressed the
Arthur Andersen factors,41 and presented detailed evidence of their attorney’s fees,
the court concluded that “the trial court’s award [was] inconsistent with this
evidence, and there [was] nothing in the record to explain the departure or to
indicat[e] that the trial court determined the reasonable hours worked or a reasonable
hourly rate.” Id. at *7 (internal quotations omitted).
In Asta Partners, the court reversed an award of attorney’s fees because the
trial court’s findings and conclusions did not reflect an application of the lodestar
method. See Asta Partners, 2021 WL 5133888, at *2. The prevailing party had a
contingency agreement with its attorneys for 40% of the verdict, but to recover for
41
See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.
1997).
26
its fees under the lodestar method, it introduced detailed evidence that its counsel
had worked 588.4 hours on the case and that his hourly rate was $575. See id. at *9–
11. The court noted that, although the trial court’s findings described the $575
hourly rate as unreasonable for “significant portions of the work [that counsel]
performed,” the findings “d[id] not demonstrate that the tri