Texas Supreme Court restates the law on recovery of attorney’s fees.
Is that a good thing?
by William Ogden, Kean Miller LLP
The Texas Supreme Court has issued a significant new decision restating the law on recovery of attorney’s fees. In a 56 page opinion issued April 26, 2019, authored by Justice Paul Green writing for a unanimous court, the Court revisited the standards for legally sufficient evidence to support a fee award, reviewing some half dozen of the Court’s conflicting decisions since its seminal ruling over two decades ago in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (Tex. 1997).
The case is Rohrmoos Venture v. UTSW DVA Healthcare, 2019 WL 1873428 (Tex. April 26, 2019). At issue was a commercial lease dispute between Rohrmoos as landlord and UTSW as tenant. After experiencing repeated problems with water penetration in its dialysis clinic, UTSW vacated the leasehold and sued Rohrmoos for breach of contract and breach of the implied warranty of suitability. Rohrmoos counterclaimed for approximately $250,000 in unpaid rent. The jury found largely in UTSW’s favor, finding that both parties breached the lease, but Rohrmoos breached first. The trial court entered judgment holding that UTSW was entitled to terminate the lease as a remedy for Rohrmoos’ default and was entitled to a take-nothing judgment on Rohrmoos’ counterclaim for unpaid rent.
To support its claim for attorney’s fees, UTSW’s attorney testified that he had 20 years of litigation experience, that his hourly rate was $430 per hour, that he had handled many similar cases, and that a reasonable number of hours to spend on the case would be between 750 to 1,000 hours. Those hours multiplied by his hourly rate would yield a reasonable and necessary fee in the range of $300,000 to $400,000. But the lawyer went on to state that this particular litigation, “for whatever reason, has not been worked up in a reasonable fashion.” Factors driving up the fees included having to search “millions” of emails, to review “hundreds of thousands” of documents, and participating in over forty depositions. Because of the extra work, fees incurred were “over $800,000.”
The jury awarded attorney’s fees of $800,000 for representation in the trial court, $150,000 for representation in the Court of Appeals, and $75,000 for representation in the Supreme Court, for a total of $1,025,000. The trial court entered judgment for UTSW in the full amount and the court of appeals affirmed. The court of appeals held that billing records were not required to prove attorney’s fees, and the testimony of the lawyer’s experience, the amount in controversy, the total fee, the complexity of the case, and the reasonableness of the gross fees incurred was sufficient to support the fee award under Arthur Andersen.[1]
The Defendant as “Prevailing Party”
The lease simply stated that “[i]n any action to enforce the terms of the Lease, the prevailing party shall be entitled to an award for its reasonable attorneys’ fees.” The Supreme Court thus had to first determine whether UTSW was a “prevailing party” entitled to recover attorney’s fees. UTSW did not present a claim at trial for consequential damages arising from Rohrmoos’ default, so the jury awarded no damages. UTSW abandoned its declaratory judgment claim at trial – a claim that the Court of Appeals declined to address since it affirmed the fee award on other grounds.[2] Rohrmoos thus argued that attorney’s fees could not be awarded under the Declaratory Judgment Act. Because the lease did not define the term “prevailing party,” Rohrmoos argued that Tex. Civ. Prac. & Rem. Code § 38.001(8) applied, which meant that UTSW could not be a “prevailing party” unless it recovered damages.[3] The Supreme Court disagreed. The parties were free to contract for a fee-recovery standard either looser or stricter than § 38.001, and in this case, the lease’s plain language contained no requirement that a party recover damages to be a “prevailing party” enforcing the lease terms.[4]
Agreeing with the Court of Appeals, the Supreme Court found that UTSW, as counter-defendant, was the “prevailing party” because it was vindicated by the trial court’s judgment. Since Rohrmoos breached the lease first, UTSW was entitled to terminate. That meant UTSW successfully defeated the breach of contract counterclaim, and was entitled to a take nothing judgment on Rohrmoos’ suit for $250,000 in back rent. The Court held that a party “prevails” when it “obtains actual and meaningful relief, something that materially alters the parties’ legal relationship.”[5] Thus, while UTSW recovered no monetary damages, its successful defense and take-nothing judgment on the counterclaim for back rent was “actual and meaningful relief, materially altering the parties’ legal relationship.”[6]
Recognizing that a defendant can be a “prevailing party” entitled to recover fees is a potentially significant development. Following the Court’s precedent in KB Home, Rohrmoos had argued that a prevailing party must be one who could “prove compensable injury and secure an enforceable judgment in the form of damages or equitable relief.”[7] The Court agreed that “[a]t first blush, KB Home’s holding appears damning to UTSW.”[8] However, the KB Home opinion is limited to an analysis of what the plaintiff must prove to be a “prevailing party.” Following KB Home, it had been somewhat of an open question whether a defendant could be a “prevailing party” if it won a defense verdict, but failed to recover its own damages or other affirmative relief. The Court squarely sided with those courts of appeal which had held that a defendant could be a “prevailing party” by successfully defending the damage claim and securing a take-nothing judgment.[9]
Two Methods to Prove Fees
In reviewing the sufficiency of the evidence to support the fee award of $1,025,000, the Court noted that Texas law in the past two decades had developed references to at least two methods of proving fees: the Arthur Andersen method (sometimes referred to as the “traditional” method), and the lodestar method – where a reasonable hourly rate is multiplied by the time required for discrete tasks, then totaled to yield a base lodestar calculation.[10] The Court of Appeals had referenced both the traditional and the lodestar methods, concluding that the lodestar method was not statutorily required, and that UTSW had chosen to prove its attorney’s fees under the traditional method. The Court of Appeals then affirmed UTSW’s fee award of $1,025,000, holding that the attorney’s testimony concerning his hourly rate, his experience, the total fees incurred and the reasonableness of those fees was sufficient to support the award under the traditional Arthur Andersen analysis.[11] The Arthur Andersen analysis looks at eight factors::
- the time and labor required, the novelty and difficulty of the questions, and the skill required;
- the likelihood that acceptance of the representation will preclude other employment;
- the fee customarily charged in the locality for similar services;
- the amount involved and the results obtained;
- time limitations imposed by the client or other circumstances;
- the nature and length of the professional relationship with the client;
- the experience, reputation and ability of the lawyer; and
- whether the fee is fixed or contingent on results obtained, or other factors indicating uncertainty of collection.[12]
Fifteen years after Arthur Andersen, a new line of cases emerged in which the Supreme Court began to signal a preference for the lodestar method of proving attorney’s fees. In El Apple vs. Olivas, the Court reversed an attorney’s fee award where the lawyer testified generally that he spent 700 hours at a total of $250 per hour, while his co-counsel spent 190 hours at a rate of $300 per hour, and that the resulting sums were reasonable and necessary given the nature of the case and the results obtained.[13] The Court noted that federal courts used the lodestar method in awarding fees in Title VII cases, and accordingly, Texas courts had adopted the lodestar formula in awarding fees under the Texas Commission on Human Rights Act.[14] While billing records were not required, the Court held that, at a minimum, evidence to support a lodestar calculation must include “documentation of the services performed, who performed them and what hourly rate, when they were performed, and how much time the work required.”[15]
El Apple was initially thought to be limited to TCHRA discrimination claims.[16] The Supreme Court, however, applied the same analysis the next year in City of Laredo vs. Montano, an eminent domain case in which attorney’s fees were allowed under the Texas Property Code.[17] The attorney testified that he did not keep time records, but that he spent “a lot of time” on extensive preparations and legal research, spent “countless” hours on motions and depositions, concluding with an estimate that he devoted “a bare bones minimum” of six hours a week for 226 weeks, which when multiplied by a $250 hourly rate yielded a reasonable fee of $339,000. Citing El Apple, the Supreme Court held that “testimony in generalities about tasks performed … did not provide enough information for a meaningful review of whether the tasks and hours are reasonable and necessary.”[18] While contemporaneous billing records were encouraged, they were not required. But the lodestar calculation required “certain basic proof, including itemizing specific tasks, the time required for those tasks, and the rate charged by the person performing the work.”[19]
The following year, in Long v. Griffin, the Supreme Court reversed and remanded another attorney-fee award—this time in a breach-of-contract and declaratory-judgment action.[20] As in El Apple and Montano, the plaintiffs in Long supported their fee claim with affidavits generally describing the categories of tasks performed, but included no evidence of specific amounts of time spent on discrete tasks. The Court held that the lodestar calculation required “evidence of the time expended on specific tasks to enable the factfinder to meaningfully review the fee application.”[21] “Sufficient evidence includes, at a minimum, evidence of the services performed, who performed them and at what hourly rate, when they were performed and how much time the work required.”[22]
Two Paths Merge
Considering El Apple, Montano, and Long, the Supreme Court’s reversal of the fee award in Rohrmoos was unsurprising. The attorney gave only generalized, “hand-waving” testimony containing only a conclusory number of gross hours billed, with a generalized stream-of-consciousness description of global tasks. What was surprising was the Court’s “explanation” that the lodestar method and the Arthur Andersen method were actually one and the same: “the lodestar method developed as a ‘shorthand version’ of the Arthur Andersen factors and was never intended to be a separate test or method.”[23]
This is, at best, revisionist history. As the opinion noted, a substantial body of Texas case law had recognized the tests as different methods, often contrasting the two methods and discussing the factors that would lead a practitioner or a court to choose one method over the other. [24] Indeed, the very fact that the jurisprudence described them as the “lodestar method” or the “traditional method” suggests they are alternatives, not two names for the same process. Long went so far as to refer to a third “contingency fee method,”[25] although how any contingent fee method could still exist 17 years after Arthur Andersen remains a mystery.
The Court’s own precedent often contrasted the traditional and lodestar methods as two distinct paths, where the practitioner had a choice to elect one method over the other. In Montano, for example, the Court noted that the fee-shifting statute in that case (Tex. Prop. Code § 21.019) did not require the lodestar calculation, while the TCHRA claim in El Apple did. Plainly, the Court thought that Montano had a choice: “The property owner nonetheless chose to prove up attorney’s fees using [the lodestar] method, and so our observations in El Apple have similar application here.”[26] The Court used similar language in Long, characterizing the party’s choice of the lodestar method as an election: “Because the Griffins offered no evidence of the time expended on particular tasks, as we have required when a claimant elects to prove attorney’s fees via the lodestar method, we agree with the Long Trusts that the Griffins did not provide the trial court with legally sufficient evidence to calculate a reasonable fee.”[27]
If, as the Court candidly noted, attorney’s fee jurisprudence had “created confusion for practitioners and courts alike,”[28] the Court’s own characterization of lodestar as a “choice” or “election” is at least partly to blame. But the confusion over two conflicting methods did not result from word choice alone. A pair of Supreme Court opinions appeared to sanction attorney’s fee awards based on fairly generalized and conclusory proof, with no mention of the lodestar method or the requirement to provide more specific documentation. In Garcia v. Gomez, a medical malpractice case under the Texas Medical Liability Act, the Court appeared to bless the testimony of Dr. Garcia’s attorney, who simply said he had been practicing medical malpractice litigation in Hildago County since 1984, and it was usual and customary to charge an attorney’s fee of $12,200 for handling a med mal claim to the point of dismissal.[29] In Kinsel vs. Lindsey, a probate case seeking a constructive trust and relief under the Declaratory Judgment Act, the Court still found that the generalized and conclusory testimony of the Kinsels’ lawyer was some evidence to support an $800,000 fee award in the trial court.[30] Kinsel agreed with the court of appeals that, although the attorney’s testimony was notably “lacking in specifics,” it met the minimum quantum of proof required under Garcia vs. Gomez.[31] Kinsel makes no reference to lodestar analysis at all.
The Court in Rohrmoos acknowledged the apparent inconsistency of its prior decisions in Garcia and Kinsel,[32] but distinguished them as involving only involved reversals of no-evidence challenges to fee awards. Apparently, the “traditional” method, where an attorney provides generalized and conclusory testimony of work performed and a gross fee, is still some evidence of attorney’s fees, and thus will defeat a no-evidence challenge. But that testimony “should not be read, in any way, as a guiding statement on the standard for whether the evidence is legally sufficient to support a fee-shifting award of attorney’s fees.”[33] That is a superficially plausible attempt—albeit a strained one—to harmonize Garcia/Kinsel with El Apple/Montano/Long. In the author’s view, courts and practitioners alike must be forgiven if they experience some “confusion” in applying lodestar or Arthur Andersen analysis.
The New Paradigm in Three Steps
A prevailing party seeking to recover attorney’s fees must now satisfy three steps. First, the recovery must be legally authorized by contract, statute, or other law. Second, proof that fees are reasonable and necessary begins with the base lodestar analysis, using evidence of specific tasks, on specific dates, at specific hourly rates, by specific timekeepers. Third, the base lodestar calculation may then be enhanced or reduced based on factors outside the Arthur Andersen framework, although the circumstances permitting enhancement or reduction are rare.
- Legally Authorized.
The Court reiterates its support for the American Rule, which provides that each party pays his own attorney’s fees unless specific statutory or contractual authority allows fee shifting.[34] The authority for recovering fees should be carefully examined. If, for example, fee recovery is permitted by contract, the Court recognizes that the parties may impose conditions on that recovery. “Parties are free to contract for a fee-recovery standard either looser or stricter” than a statute might allow.[35] Statutes allowing recovery of attorney’s fees must also be carefully examined for conditions or limitations. Some statutes may require that the attorney’s fees be “incurred” – meaning that the prevailing party must actually be liable for paying the fee.[36] Other statutes may expressly allow a court to take judicial notice of reasonable fees in the locality,[37] although Rohrmoos suggests that judicial notice alone cannot supplant the requirement to prove the base lodestar calculation. Some statutes, like the Declaratory Judgment Act,[38] or the Texas Anti-SLAPP Statute,[39] expressly require that the claimed fees be “equitable and just.” Still other laws, like the Texas rule on class actions, require lodestar proof, then prohibit reductions to less than twenty-five percent (25%) of the base, or enhancements to more than 400% of the base.[40]
The proliferation of statutes authorizing attorney-fee recovery suggests that statutory exceptions may have long since swallowed the “American Rule.” One 1977 commentary counted “more than 70” federal statutes[41] allowing recovery of attorney’s fees; by 2008, another survey counted over 200.[42]
- Base Lodestar.
It now appears beyond question that in any fee-shifting situation, whether statutory or contractual, the prevailing party must prove that the fees are both “reasonable and necessary” – regardless of what other proof the statute or contract may require. Rohrmoos noted that different statutes sometimes “loosely employ” either a reasonable standard, or a reasonable and necessary standard, but “[t]he distinction between such provisions is immaterial.”[43] A claimant must always prove that the requested fees are both reasonable and necessary.[44]
Base lodestar is the means—probably the only means—by which the claimant satisfies that burden of proof. There is a “strong presumption”[45] 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.”[46] The base lodestar calculation is meant to be objectively verifiable and more uniformly administered. Rohrmoos lays out a roadmap for the five lodestar factors: evidence of (1) particular services performed, in discrete tasks; (2) the billing professional performing those services; (3) that professional’s reasonable hourly rate; (4) approximately when the services were performed (best practice being the exact date); and (5) the reasonable amount of time required to perform each service or discrete task.[47] Conclusory or global testimony will not suffice. Gone are the days when an attorney may simply furnish an affidavit saying, in effect, “I spent 400 hours on this case, and my reasonable hourly rate is $250 per hour; I took six depositions, had five motion hearings, and a four-day jury trial involving eight witnesses; got good results, and the resulting fee of $100,000 is reasonable and necessary and in line with fees customarily charged in the locality.” Lodestar is now the standard in all fee-shifting situations.[48]
Two other considerations bear on the lodestar calculation. First, reasonableness and necessity are not dependent on the contractual arrangement between the prevailing party and its attorney.[49] One could question whether the attorney’s fee contract is even relevant, except in situations where statutory authority for the fee requires that the party “incurred” fee liability. Second, charges for duplicative, excessive or inadequately documented work should be excluded.[50] This appears to require the claimant’s attorney to judiciously edit or review time records or redacted fee invoices, to reduce fees where a task took too much time too many timekeepers, or otherwise could have been more efficiently handled.
While the Court took pains to note that evidence in the form of contemporaneous billing records are not required,[51] it “strongly encouraged” them and appeared to suggest that daily, calendar-entry billing records, possibly in the common tenths-of-an-hour format, are the gold standard. This will require an adjustment or change of practice for many plaintiff’s lawyers, or for anyone handling a claim on a contingent fee—or even for defense counsel who represents a “prevailing party,” but has a flat fee or other alternative fee arrangement with the client.
Finally, the Court envisions a specific jury instruction that the base lodestar figure is presumed to represent reasonable and necessary attorney’s fees.[52] The instruction will require adjustment in those “rare” circumstances where evidence justifies either an enhancement or reduction to the base lodestar.
- Enhancement or Reduction.
The third and final step in the fee analysis is to adjust the base lodestar calculation up or down based on relevant factors. Although the adjustment analysis “remains very much intact,”[53] it is somewhat unclear what type of evidence would warrant an enhancement to, or reduction from, base lodestar. Enhancement or reduction cannot be based on any of the Arthur Andersen factors, as those factors are already woven into the base lodestar calculation, including the time and labor required, the difficulty of the question, the skill level required, customary fees in the locality, and the experience and reputation of the lawyer performing the services.[54] The Court offers no examples of the nature of proof that would warrant enhancement or reduction, and it is difficult to imagine it. As the Court indicated, there is a “strong presumption” that the base lodestar yields a reasonable fee, and any circumstances to further adjust that fee must be “rare.”[55]
The Elephant in the Room
A final object lesson can be gleaned from the testimony of UTSW’s attorney in support the $1,025,000 fee in Rohrmoos. The attorney testified that his hourly rate was $430 per hour, before adding “that sounds ridiculously high. I often think myself it is ridiculously high.”[56] He then testified that a reasonable and necessary amount of hours in the case would be in the range of 750 to 1,000 hours, which would put the attorney’s fees in the $300,000 to $400,000 range.[57] But, Howard continued that “This case, for whatever reason, has not been worked up in a reasonable fashion.”[58] His testimony appears to blame opposing counsel for unnecessary, excessive, scorched-earth tactics.
The parties took 40 depositions and produced “millions of emails,” resulting in hundreds of thousands of pages of document production.[59] The defendant hired twelve expert witnesses.[60] The parties introduced 900 trial exhibits in a jury trial lasting nine days.[61] There were four or five motions to compel, a 40-page motion for summary judgment, and an hours-long summary judgment hearing.[62] Howard concluded: “the costs got way out of control here and the fees were not reasonable or necessary.”[63]
There is no small amount of irony in a fee-shifting case where the claimant’s own attorney testifies that his fees “were not reasonable or necessary.” The Court was “baffled by the high amount of attorney’s fees”—that both parties spent $1,025,000 to $1,300,000 in a case where the disputed rent was $250,000.[64] What rational plaintiff would go to trial knowing it would cost 5 times the best-case recovery? What rational defendant would go to trial when he could cut his losses for 20% of defense costs?
While the Court admirably disclaims any endorsement of “satellite litigation as to attorney’s fees,”[65] it takes little imagination to see that that is exactly what is coming. Indeed, almost in the next breath, the Court offers this tactical advice: “Parties should use discovery and pretrial procedure to evaluate attorney’s fee claims and the evidence supporting them.”[66] Claimants producing time records will redact information to protect attorney-client and work product privileges, while hoping the redactions do not dilute the required proof of specific, necessary and reasonable tasks. Their opponents will consider moving to compel more information, to prepare for cross-examination (or a rebuttal expert witness) to make the case that charges are duplicative, excessive or inadequately documented. In some cases there may be no resolution short of submitting unredacted billing records to the court for in camera submission. None of this seems likely to result in fees that are lower or more reasonable.
In the regrettably common micro-managed trial practice of the 21st century, cases with attorney’s fees exceeding the amount in controversy are likely to become more common. There are many culprits. E-discovery that chases every byte of electronically stored information can yield hundreds of thousands of documents in even the smallest case, where litigants demand access to smart phones, Twitter feeds, laptops, desktops, tablets, social media accounts, emails, text messages, GPS tracks, metadata, and Alexa speakers of every witness in the case. Overcautious trial lawyers, wary of falling behind in this arms race, are outsourcing their basic skillset, so that demonstrative exhibits are now being created by graphics design firms, witnesses are being prepared by outside witness coaches, and jury consultants are regularly retained to mock try the case and assist in jury selection. The inevitable e-discovery management requires an independent IT consulting firm, since the client’s own IT department lacks objectivity. All these consultants bill at lawyer’s rates. Every issue requires an expert – witness the twelve experts retained by one side in Rohrmoos – and for every expert there must be a Daubert hearing. Pre-trial procedure is now fraught with snap mini-trials and traps for the unwary – consider the mushrooming Anti-SLAPP motion to dismiss practice – which increasingly come with independent interlocutory appeals.
More than a decade ago legal commentators bemoaned the “vanishing jury trial.” Is it any wonder? Many civil trial lawyers have simply priced their craft out of existence. Inherently unreasonable and frenetically irrational activity will never produce a reasonable fee.Conclusion
For those practitioners watching the developments in attorney-fee jurisprudence since Arthur Andersen, Rohrmoos may represent the long-awaited milestone we expected. There is simply no more credible or verifiable method to show fees are reasonable and necessary than the base lodestar calculation. Generalities must give way to proof of specific tasks, on specific calendar entries, by specific billing professionals, at reasonable rates, with a discrete amount of time for each task. Although courts may still suggest that “billing records are not required,” there is no doubt that calendar entry billing records in tenths of an hour will be the gold standard. And despite the Court’s disclaimer, satellite litigation on fee claims is inevitable.
Clarity in the standard is a good thing. For that Rohrmoos should be welcomed. But practitioners and clients alike are ill-served by adding yet another layer of “satellite” pretrial procedures to burden an already bloated civil trial process.
[1] Venture v. UTSW DVA Healthcare, LLP, 559 S.W.3d 155, 157 (Tex. App.—Dallas 2015), aff’d in part, rev’d in part sub nom. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 16-0006, 2019 WL 1873428 (Tex. Apr. 26, 2019).
[2] 559 S.W.3d at 164-65.
[3] Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997).
[4] Slip Opinion, at 19.
[5] Intercontinental Group P’ship v. KB Home Lone Star, L.P., 295 S.W.3d 650, 654-5 (Tex. 2009).
[6] Slip Opinion, at 21.
[7] KB Home Lone Star, 295 S.W.3d at 654-5.
[8] Slip Opinion, at 20.
[9] SEECO, Inc. v. K.T. Rock, LLC, 416 S.W.3d 664, 674 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); Fitzgerald v. Schroeder Ventures II, LLC, 345 S.W.3d 624, 629 (Tex. App.—San Antonio 2011, no pet.).
[10] Slip Opinion, at 29.
[11] Id.
[12] Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997); Tex. Disciplinary R. Prof. Conduct § 1.04.
[13] El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012).
[14] El Apple I,370 S.W.3d at 760.
[15] Id. at 764.
[16] Slip Opinion, at 37: “After El Apple questions surfaced regarding whether the lodestar method applies in cases where the request for attorney’s fees is not based on the TCHRA …”
[17] City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013).
[18] Monsanto, 414 S.W.3d at 735-36.
[19] Id. at 736.
[20] Long v. Griffin, 442 S.W.3d 253 (Tex. 2014).
[21] Id. at 253, 255 (internal citations omitted).
[22] Id.
[23] Slip Opinion, at 30, and at 39.
[24] 559 S.W.3d at 168; Metroplex Mailing Servs. LLC v. RR Donnelley & Sons Co., 410 S.W.3d 889, 900 (Tex. App.—Dallas 2013, no pet.); Woodhaven Partners Ltd. v. Shamoun & Norman, LLP, 422 S.W.3d 821, 846 (Tex. App.—Dallas 2014, no pet.); Jeff Kaiser, PC v. State, 2016 WL 1639731, at *5 (Tex. App.—Austin 2016, pet. denied); Jimoh v. Nwogo, 2014 WL 7335158, at *7 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Ferrant v. Graham Assoc. Inc., 2014 WL 1875825, at *8-9 (Tex. App.—Fort Worth 2014, no pet.).
[25] 442 S.W.3d at 256.
[26] 414 S.W.3d at 736 (emphasis added).
[27] 442 S.W.3d at 254-55 (emphasis added).
[28] Slip Opinion, at 30.
[29] Garcia vs. Gomez, 319 S.W.3d 638, 641 (Tex. 2010).
[30] Kinsel vs. Lindsey, 526 S.W.3d 411 (Tex. 2017).
[31] Id. at 427.
[32] Slip Opinion, at 40-42.
[33] Slip Opinion, at 41.
[34] Slip Opinion, at 23; Tony Gullo Motors I, LP v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006).
[35] Slip Opinion, at 19, citing KB Home, 295 S.W.3d at 653.
[36] Slip Opinion, at 27. See, e.g., Texas Medical Liability Act, Tex. Civ. Prac. & Rem. Code § 74.351(b)(1).
[37] Tex. Civ. Prac. & Rem. Code § 38.004.
[38] Tex. Civ. Prac. & Rem. Code § 37.009.
[39] Tex. Civ. Prac. & Rem. Code § 27.009.
[40] Tex. R. Civ. P. 42(i)(1).
[41] S. Berger, Court-awarded Attorneys’ Fees: What Is Reasonable?, 126 U. Penn. L. Rev. 281 (1977).
[42] H. Cohen, Congressional Research Service Report for Congress: Awards of Attorney’s Fees by Federal Courts and Federal Agencies (June 2008).
[43] Slip Opinion, at 26-27.
[44] Id.
[45] Slip Opinion, at 49.
[46] Slip Opinion, at 45.
[47] Slip Opinion, at 49. See also, El Apple, 370 S.W.3d at 762-63.
[48] Slip Opinion, at 40.
[49] Slip Opinion, at 43.
[50] El Apple, 370 S.W.3d at 762.
[51] Slip Opinion, at 50.
[52] Slip Opinion, at 48.
[53] Slip Opinion, at 46.
[54] Slip Opinion, at 46-47.
[55] Slip Opinion, at 49.
[56] Slip Opinion, at 51.
[57] Id.
[58] Slip Opinion, at 52. (emphasis added).
[59] Slip Opinion, at 52-53.
[60] Slip Opinion, at 55, n. 16.
[61] 559 S.W.3d, at 159.
[62] Slip Opinion, at 53.
[63] Slip Opinion, at 53. (emphasis added).
[64] Slip Opinion, at 54, n.15.
[65] Slip Opinion, at 51.
[66] Slip Opinion, at 51.