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reasonable and necessary attorney's fees | fee segregation |

ATTORNEY'S FEES - CASELAW SNIPPETS

A party may recover reasonable attorney’s fees under section 38.001 of the Civil Practice and Remedies Code if
the party (1) prevails on a breach of contract claim and (2) recovers damages. TEX. CIV. PRAC. & REM. CODE
ANN. § 38.001(8) (West 2008); MBM Fin. Corp. v. Woodlands Operating Co. L.P., 292 S.W.3d 660, 666 (Tex.
2009).

The party need only recover some amount in damages on its breach of contract claim. MBM Fin., 292 S.W.3d at
666. The amount of attorney’s fees awarded is only required to bear some reasonable relationship to the amount
recovered. Chilton Ins. Co. v. Pate & Pate Enterprises, Inc., 930 S.W.2d 877, 896 (Tex.App.—San Antonio 1996,
writ denied); Cordova v. Sw. Bell Yellow Pages, Inc., 148 S.W.3d 441, 448 (Tex. App.—El Paso 2004, no pet.).
Further, the amount of damages awarded is only one of several factors used in determining the reasonableness
of an attorney fee award.  Cordova, 148 S.W.3d at 448; Hicks Oil & Butane Co. v. Garza, No. 04-05-00836-CV,
2006 WL 2263896, at *4 (Tex. App.—San Antonio Aug. 9, 2006, no pet.) (mem. op.).
04-10-00845-CV

The factors frequently considered in determining the reasonableness of an attorney fee award are: (1) the time
and labor required, the novelty and difficulty of the question presented, and the skill required; (2) the likelihood
that acceptance of employment precluded other employment; (3) the fee customarily charged for similar 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 expertise,
reputation, and ability of the lawyer performing the services; and (8) whether the fee is fixed or contingent. Arthur
Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

FEE SEGREGATION REQUIREMENT

Generally, a party seeking attorneys’ fees must show that the fees were incurred on a claim that allows recovery
of such fees and must segregate fees incurred among different claims or separate parties. See Stewart Title
Guar. Co. v. Aiello, 941 S.W.2d 68, 73 (Tex. 1997); Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.
1991), modified on other grounds by Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313–14 (Tex. 2006).
When, however, the claims are “dependent upon the same set of facts or circumstances and thus are ‘intertwined
to the point of being inseparable,’ the party suing for attorneys’ fees may recover the entire amount covering all
claims.” Sterling, 822 S.W.2d at 11 (citing Gill Sav. Ass’n v. Chair King, Inc., 783 S.W.2d 674, 680 (Tex. App.—
Houston [14th Dist.] 1989), aff’d in part & modified in part on other grounds, 797 S.W.2d 31 (Tex. 1990)).


Attorney Fees Decisions from the Texas Supreme Court (Tex. 2008-09)

Midland Western Building LLC v. First Service Air Conditioning Contractors, Inc., No. 08-0504 (Tex. Nov. 20, 2009)
(per curiam) (zero attorney's fees award not supported by the evidence,
attorney fee testimony, segregation of
fees incurred against different parties)(new trial on attorney's fees ordered)   
MIDLAND WESTERN BUILDING L.L.C. v. FIRST SERVICE AIR CONDITIONING CONTRACTORS, INC.; from
Midland County; 11th district (11 06 00222 CV, ___ SW3d ___, 03 13 08)  
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral
argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.

Akin, Gump, Strauss, Hauer & Feld, LLP v. National Development and Research Corp. No. 07-0818 (Tex. Oct. 30,
2009)(Johnson)(
legal malpractice, attorney's caused by malpractice as recoverable damages, the American Rule)
(proper amount of attorney's fees damages to be determined upon remand)
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. v. NATIONAL DEVELOPMENT AND RESEARCH CORPORATION;
from Dallas County; 5th district (05-06-01024-CV, 232 SW3d 883, 08-29-07)
2 petitions    
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case in part to the
court of appeals.
Justice Johnson delivered the opinion of the Court.

David J. Sacks, PC v. McIntre Haden, No. 07-0472 (Tex. Sep. 26, 2008)(substituted per curiam opinion on motion
for rehearing)(parole evidence rule bars evidence of oral agreement to cap attorney fees)
DAVID J. SACKS, P.C. D/B/A SACKS & ASSOCIATES v. CHARLES MCINTYRE HADEN, JR., INDIVIDUALLY, AND
CHARLES MCINTYRE HADEN, JR. & COMPANY D/B/A HADEN & COMPANY; from Harris County; 1st district (01-
01-00200-CV, 222 SW3d 580, 03-08-07)
motion for rehearing granted
The Court's opinion and judgment of July 11, 2008 are withdrawn and the opinion and judgment of this date are
substituted.          
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral
argument, the Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to
the court of appeals.
Per Curiam Opinion

Sacks , PC v. Haden, No. 07-0487 (Tex. July 11, 2008)(per curiam)
(
turnover order to enforce judgment in attorney's fees collection case)
DAVID J. SACKS, P.C. D/B/A SACKS & ASSOCIATES v. CHARLES MCINTYRE HADEN, JR., INDIVIDUALLY, AND
CHARLES MCINTYRE HADEN, JR. & COMPANY D/B/A HADEN & COMPANY; from Harris County; 1st district (01-
03-00025-CV, 222 SW3d 580, 03-08-07)
unopposed motion to consolidate dismissed as moot
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral
argument, the Court reverses the court of appeals' judgment and remands the case to that court.Per Curiam
Opinion

FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6, 2008) (Phil
Johnson) (condemnation, implications of reduction of amount of land to be taken on land owner's recovery of
fees, partial nonsuit)
FKM PARTNERSHIP, LTD., A TEXAS LIMITED PARTNERSHIP v. BOARD OF REGENTS OF THE UNIVERSITY OF
HOUSTON SYSTEM; from Harris County; 14th district (14-03-00392-CV, 178 S.W.3d 1, 04-14-05) 2 petitions   
The Court affirms the court of appeals' judgment and remands the case to the trial court.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill,
Justice Wainwright, Justice Brister, Justice Medina, and Justice Green joined.
Justice
Willett delivered an opinion concurring in part and dissenting in part.

Medical City Dallas, Ltd. v. Carlisle Corp., No. 06-0660 (Tex. Apr. 11, 2008)(Jefferson)
(breach of express warranty claim, entitlement to attorney's fees)
MEDICAL CITY DALLAS, LTD. v. CARLISLE CORPORATION D/B/A CARLISLE SYNTEC
SYSTEMS; from Dallas County; 5th district (05-04-00157-CV,
196 S.W.3d 855, 06-27-06)
The Court reverses in part the court of appeals' judgment and reinstates the trial court's judgment.
Chief Justice Jefferson delivered the opinion of the Court.
(Justice Hecht not sitting)

In Re Fleetwood Homes of Texas, LP, 257 S.W.3d 692 (Tex. 2008) (orig. proc.)
(
arbitration clause enforced, no waiver)
It is true that absent a contractual agreement like this, Texas law allows attorney’s fees only for a prevailing
plaintiff. See Tex. Civ. Prac. & Rem. Code § 38.001–.002. But allowing both parties to recover fees hardly makes
an agreement “one-sided”; such agreements, common in commercial contexts, surely make them less so.

Lowenberg v. City of Dallas, No. 06-0310 (Tex. Mar. 28, 2008)(per curiam)
(illegal fee, tax refund suit, takings claim, declaratory judgment,
UDJA attorney's fees)
JIM LOWENBERG, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED v. CITY OF DALLAS;
from Dallas County; 11th district (11-03-00061-CV, 187 S.W.3d 777, 03-01-06)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral
argument, the Court reverses the court of appeals' judgment and renders judgment.


COURT OF APPEALS DECISIONS IN WHICH THE SUPREME COURT DENIED
REVIEW

08-0491  
MALCOLM L. SHAW v. COUNTY OF DALLAS, DALLAS COMMUNITY COLLEGE DISTRICT, PARKLAND
HOSPITAL DISTRICT, DALLAS COUNTY SCHOOL EQUALIZATION FUND, CITY OF DALLAS AND DALLAS
INDEPENDENT SCHOOL DISTRICT; from Dallas County; 5th district (
05-07-00366-CV, 251 SW3d 165, 04-09-08)
(property tax delinquency litigation, attorney's fees under UDJA) as supplemented
Appellant Malcolm   See Footnote 1  L. Shaw appeals the trial court's judgment denying his claim for attorney's
fees in a suit to collect delinquent ad valorem taxes.  We affirm.

08-0303  
PAUL MOOD AND K&M DISTRIBUTORS v. KRONOS PRODUCTS, INC.; from Dallas County; 5th district (
05-06-
00111-CV, 254 SW3d 8, 11-28-07, pet. denied Jun 2008)(breach and termination of a distributorship agreement )
Mood asserts the trial court erred in disregarding the jury's answer to question 6, which awarded Mood attorney's
fees. Mood sought attorney's fees pursuant to chapter 38 of the Texas Civil Practice and Remedies Code. Tex.
Civ. Prac. & Rem. Code Ann. § 38.001 et seq. (Vernon 1997). Because Mood was not a prevailing party on any of
his claims, he was not entitled to recover attorney's fees. See Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.
1997). We resolve Mood's fourth issue against him.

08-0440  
ELISABETH S. BROCKIE v. BRIAN L. WEBB AND WEBB & ACKELS, P.C.; from Dallas County; 5th district (05-06-
01711-CV, 244 SW3d 905, 02-11-08) as redrafted (
attorney-client fee disputes, divorce attorney's fees collection,
intervention, counterclaim)

08-0232  
CLINT W. LEWIS AND CLINT W. LEWIS AND ASSOCIATES v. EDWARD B. CHATELAIN, III; from Jefferson County;
9th district (
09-07-00349-CV, ___ SW3d ___, 01-31-08, pet. denied)(attorney's fees dispute)

08-0237  
SIMPLIFIED DEVELOPMENT CORP., ET AL. v. JON GARFIELD; from Harris County; 14th district
(
14-06-00526-CV, ___ SW3d ___, 02-14-08, pet. denied) 2 petitions (breach of employment contract and a stock
option agreement, attorney's fees)

08-0284  
ERNEST BUSTOS v. SCHWABE, WILLIAMSON & WYATT, P.C.; from Bexar County; 4th district (04-07-00081-CV,
___ SW3d ___, 01-23-08)(
attorney-client, suit by law firm against client over fees, DTPA counterclaim, motion to
recuse judge denied)

07-0497
THE CADLE COMPANY AND CADLEWAY PROPERTIES, INC. v. MARY ESTER ORTIZ AND DAVID ORTIZ;
(
Dissenting Opinion) from Calhoun County; 13th district (13-06-00282-CV, 227 SW3d 831, 05-17-07, pet. denied
April 2008) (wrongful foreclosure, mechanics lien, attorneys fees)
This appeal arises from a wrongful foreclosure lawsuit. Mary Ester Ortiz and David Ortiz, appellees, obtained a
judgment invalidating a lien on their homestead held by The Cadle Company and Cadleway Properties, Inc.
("Cadle"), appellants. The trial court declared a wrongful foreclosure and also awarded the Ortizes attorneys'
fees. The issues presented are (1) whether a mechanic's lien against a marital homestead is valid if the lien
documents are not signed by both spouses, and (2) whether attorneys' fees are available in a foreclosure case
wherein title ultimately depends upon a deed's construction. We hold that the mechanic's lien is invalid, and
attorneys' fees are available. Accordingly, we affirm the district court's judgment on both issues.





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