REASONABLENESS OF AMOUNT OF ATTORNEY'S FEES AWARDED
When attorney's fees are authorized, the reasonableness of attorney's fees is a fact question. Bocquet v.
Herring, 972 S.W.2d 19, 21 (Tex. 1998). We must assume the trial court made the necessary fact findings to
support the judgment when neither party requests findings of fact or conclusions of law. See Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam) (holding findings should be implied in favor of order
modifying child support). Where the implied findings are supported by the evidence, we are required to uphold
the judgment on any theory of law applicable to the case. Id.; Point Lookout W., Inc. v. Whorton, 742 S.W.2d
277, 278 (Tex. 1987) (per curiam).
TEX. CASE LAW
Smith v. Patrick W. Y. Tam Trust, No. 07-0970 (Tex. Oct. 23, 2009)(Jefferson)
(reasonableness of attorneys fees when recovery of damages is less than what was sought)
LAURI SMITH AND HOWARD SMITH v. PATRICK W.Y. TAM TRUST; from Collin County;
5th district (05-06-00356-CV, 235 SW3d 819, 07-31-07)
The Court reverses in part the court of appeals' judgment and remands the case to the trial court.
Chief Justice Jefferson delivered the opinion of the Court.
In Texas courts, the reasonableness of attorney’s fees is normally “a fact issue for the jury.” Scott A. Brister,
Proof of Attorney’s Fees in Texas, 24 St. Mary’s L.J. 313, 349 (1993) (“Texas law treats attorney's fees as a
fact issue for the jury rather than as a collateral matter usually determined by the court after the trial has been
concluded and the loser determined.”). Obviously, parties can contract otherwise if they wish.
JUDICIAL NOTICE OF USUAL AND CUSTOMARY FEES
39 Tex. Civ. Prac. & Rem. Code § 38.004 (“The court may take judicial notice of the usual and customary
attorney’s fees and of the contents of the case file without receiving further evidence in: (1) a proceeding
before the court; or (2) a jury case in which the amount of attorney’s fees is submitted to the court by
Intercontinental Group Partnership v. KB Home Lone Star LP., No. 07-0815 (Aug. 28, 2009)(Willett)
(prevailing party for attorney fee purposes)
INTERCONTINENTAL GROUP PARTNERSHIP v. KB HOME LONE STAR L.P.; from Hidalgo County;
13th district (13-06-00617-CV, ___ SW3d ___, 08-23-07)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Green,
and Justice Johnson joined. [pdf]
Justice Brister delivered a dissenting opinion, in which Justice O'Neill, Justice Wainwright, and Justice Medina
JAY PETROLEUM, L.L.C. v. EOG RESOURCES, INC. F/K/A ENRON OIL & GAS COMPANY; from Harris
County; 1st district (01-08-00541-CV, ___ SW3d ___, 05-07-09, pet. denied Sep. 2009)(scope of remand,
implications of relief requested or not prayed for in court of appeals, remand of counterclaims, attorney's fees,
fact issue as to reasonableness of attorney's fees, inflated number of hours claimed, controverting
countervailing fee affidavit by attorney)
(Justice O'Neill not sitting, pet. denied Sep. 2009)