      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                ON MOTION FOR REHEARING



                                        NO. 03-09-00056-CV



                 Appellant, Attila B. Horvath// Cross-Appellant, Julie Ann Hagey

                                                  v.

                  Appellee, Julie Ann Hagey// Cross-Appellee, Attila B. Horvath


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
      NO. D-1-FM-01-000225, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 The memorandum opinion issued by this court on March 25, 2011, is withdrawn and

the following memorandum opinion is substituted in its place. We overrule the parties’ motions

for rehearing.

                 Attila B. Horvath appeals the trial court’s post-divorce order distributing proceeds

from the sale of the parties’ property and awarding attorney’s and bookkeeping fees to his former

wife, Julie Ann Hagey. In two issues, Horvath contends that the trial court erred by misconstruing

the terms of the parties’ agreements regarding the disposition of certain marital assets and by

awarding Hagey attorney’s fees and bookkeeping expenses. Hagey raises one issue on cross-appeal,

contending that the trial court erred by denying her motion to submit additional evidence of her
appellate attorney’s fees. We will reverse and render in part, modify in part, and affirm the judgment

as modified.


                                         BACKGROUND

               Horvath and Hagey married in 1989 and divorced in 2001. In dividing their

community property in anticipation of their divorce, the parties agreed to award their shares of stock

in a Hungarian power plant to Horvath.1 Because Horvath had used $185,000 of Hagey’s separate

property to purchase these shares of stock, they also included in their decree a payment plan to

reimburse Hagey for her separate property. The payment plan required Horvath to pay Hagey the

first $185,000 of any proceeds he received from dividends or sale of his interest in the Hungarian

power plant, keep the second $185,000 of proceeds for himself, and then split any remaining

proceeds evenly with Hagey. Pursuant to this payment plan, Horvath paid Hagey $179,648.01 in

dividend distributions from the stock.

               In 2006, during discovery in a suit to modify the parent-child relationship, Hagey

learned for the first time that Horvath had used her $185,000 of separate property to purchase shares

of stock in two Hungarian power plants—known as the Dunamenti and the Vertesi power

plants—not just the one unidentified Hungarian power plant described in their divorce decree. To

correct this discrepancy—i.e., that the community owned shares in two Hungarian power plants, but




       1
          When the parties separated in May 2000, they entered into a separation agreement setting
forth how their property would be distributed if the parties divorced. This separation agreement
includes the provisions dividing the parties’ interest in the Hungarian power plant, but because it was
eventually incorporated in the decree, we will refer to the decree when discussing any terms included
in this separation agreement.

                                                  2
their decree only disposed of the shares of one power plant—the parties agreed to “clarify” their

divorce decree by acknowledging that they owned shares in two Hungarian power plants and by

modifying the division of property such that each party owned 50% of the shares in both Hungarian

power plants. Their agreement also specifically retained the payment plan from the divorce decree.2

The parties incorporated this agreement into their agreed order modifying the parent-child

relationship (the “2006 agreed order”).

               In 2007, Hagey and Horvath agreed to sell their individually owned shares of stock

in the Vertesi power plant to a third party for a combined amount of $280,281.88. Because they

disagreed on how these proceeds should be distributed under the decree and the 2006 agreed order,

however, they deposited the sale proceeds into escrow with Hagey’s attorney until the matter could

be resolved. Hagey eventually initiated this proceeding, claiming that she was entitled to one-half

of the Vertesi sale proceeds—i.e., $140,140.94—under the terms of the parties’ 2006 agreed order.

She also requested her attorney’s fees incurred in connection with the distribution issue and

bookkeeping expenses related to a child-support dispute. Horvath responded by asserting that,

before the Vertesi proceeds could be split under the 2006 agreed order, he was entitled to his

$185,000 payment under the divorce decree’s payment plan because Hagey had already received the

bulk of her $185,000 payment—i.e., $179,648.01—under that same payment plan.

               After a bench trial, the trial court found that the divorce decree applied only to the

Dunamenti interest; thus, the proceeds from the Vertesi stock sale were not subject to the divorce

decree’s payment plan. Based on this finding, the trial court awarded Hagey $140,140.94 as her one-


       2
        Based on stipulations at trial, the $179,648.01 Horvath paid Hagey under this payment plan
came from dividend distributions from the Dunamenti power plant.

                                                 3
half share of the Vertesi stock sale proceeds under the terms of the 2006 agreed order, $54,830 in

attorney’s fees, and $2,000 for bookkeeping expenses.3 Horvath appeals this judgment.


                                           DISCUSSION

Hungarian Power Plants

               Horvath argues in his first issue that the trial court incorrectly interpreted the parties’

agreements regarding the disposition of the Hungarian power-plant stock and, as a result, incorrectly

divided the Vertesi sale proceeds. Specifically, he argues that, pursuant to the decree as modified

by the 2006 agreed order, the $280,281.88 in Vertesi sale proceeds should be distributed as follows:

(1) $5,351.99 to Hagey as the amount remaining of her $185,000 payment under the decree’s

payment plan; (2) $185,000 to Horvath as his payment under the payment plan; and (3) $44,964.95

each to Hagey and Horvath, as an equal division of the remaining funds. In contrast, Hagey argues

that the divorce decree’s payment plan applies only to Dunamenti stock dividends and, as a result,

she is entitled to one-half of the Vertesi proceeds—i.e., $140,140.94—reflecting her one-half

ownership interest in that stock as memorialized in the 2006 agreed order. Both parties assert that

the terms of the divorce decree and the 2006 agreed order relating to the power-plant stock are

unambiguous and support their interpretation.

               To determine how the Vertesi stock proceeds should be distributed under the terms

of the parties’ divorce decree and 2006 agreed order, we must interpret those agreements. We



       3
         The trial court also awarded Hagey $15,171.44 as reimbursement for an outside loan given
by Horvath from that ownership interest, but we do not review that award here because neither party
challenges it on appeal.


                                                   4
interpret property settlement agreements incorporated into divorce decrees according to the law of

contracts. Buys v. Buys, 924 S.W.2d 369, 372 (Tex. 1986). If the language is unambiguous, we

interpret an agreed divorce decree and an agreed order modifying that decree just like any other

judgment, “reading the decree as a whole and ‘effectuat[ing] the order in light of the literal language

used.” See Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex. 2003) (quoting Wilde v. Murchie, 949 S.W.2d

331, 332 (Tex. 1997)). If the language is ambiguous, we must review the record along with the

decree in interpreting the judgment. Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003).

               Whether a document is ambiguous is a question of law that we review de novo. Id.

We determine whether a contract is ambiguous by looking at the agreement as a whole in light of

the circumstances surrounding its formation. Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983).

Merely because the parties argue different interpretations does not make an agreement ambiguous.

Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994). If the agreement is worded so that

we can give it a certain or definite legal meaning, it is not ambiguous and we construe it as a matter

of law. Coker, 650 S.W.2d at 393.

               The divorce decree addresses the disposition of the parties’ interest in the Hungarian

power plant as follows:


       Husband owns an interest in an electrical power plant in Hungary. Husband acquired
       his interest in the electrical power plant in Hungary with an initial investment of
       $185,000. The source of funds for this $185,000 initial investment in the Hungary
       power plant was Wife’s separate property. At the present time, the Hungarian
       electrical power plant interest is not liquid. Subject to Husband’s obligation to pay
       to Wife the payments set forth below, Wife shall convey and release to Husband any
       and all interest, marital or otherwise, which she may have in the electrical power
       plant investment. Husband agrees to pay to Wife the first $185,000 of monies that
       he receives in profit distributions and/or liquidation of his interest in the electrical
       power plant to Wife and he shall pay her as he receives the monies. Husband shall

                                                  5
       then be entitled to receive the next $185,000 of profits and/or monies received in
       liquidation of his interest in the electrical power plant. Thereafter, any monies
       received by way of profit distributions and/or monies from the sale of the electrical
       power plant interest shall be divided fifty percent (50%) to Husband and fifty percent
       (50%) to Wife.


This provision refers to and divides the parties’ interest in “an electrical power plant in Hungary,”

but the parties owned interests in two electrical power plants in Hungary—the Dunamenti and the

Vertesi plants. Thus, this provision could be referring to either the Dunamenti or the Vertesi plant.

Accordingly, the decree contains a latent ambiguity. See Friendswood Dev. Co. v. McDade & Co.,

926 S.W.2d 280, 282-83 (Tex. 1996) (holding that “a latent ambiguity exists when a contract is

unambiguous on its face, but fails by reason of some collateral matter when it is applied to the

subject matter with which it deals”); see also Raffles v. Wichelhaus, (1864) 159 Eng. Rep. 375

(Exch.) (classic “Peerless” case). When a decree is ambiguous, the court must construe it to give

effect to the parties’ true intent as expressed in the written instrument. Forbau, 879 S.W.2d at 133.

The parties’ intent is a question of fact. Coker, 650 S.W.2d at 393-94.

               The trial court here concluded that the parties’ divorce decree applied only to the

Dunamenti power plant. Although the parties do not challenge this conclusion on appeal, it is

supported by the following unchallenged findings of fact: the divorce decree referred to only one

power plant, Hagey was not aware that the parties owned investments in two power plants prior to

the divorce, Hagey did not learn of the existence of the parties’ ownership interest in the Vertesi

plant until after the parties’ divorce, Hagey received dividends from the Dunamenti stock, and Hagey

received no money from the Vertesi stock. Further, to the extent it is necessary, we can presume any

omitted findings favorable to the judgment because (1) an element of the ground of recovery was


                                                  6
included in the findings of fact; (2) the omitted element has not been properly requested; and (3) the

omitted finding is supported by the evidence. See Tex.R.Civ.P. 299; American Nat’l Ins. Co. v.

Paul, 927 S.W.2d 239, 245 (Tex. App.—Austin 1996, writ denied). Accordingly, based on the trial

court’s findings of fact and conclusion of law, the decree awarded Horvath all of the Dunamenti

shares and established a payment plan stipulating how Horvath must divide any proceeds he received

from his interest between the parties.

               We next address the 2006 agreed order, which addresses the Hungarian power plants

as follows:


       The Court further finds that the parties have acknowledged to the Court that the need
       exists for clarification of certain provisions of the [divorce decree], that they have
       reached an agreement and ask the Court to enter this Order clarifying their ownership
       rights and duties as they relate to certain foreign assets located in Hungary. The
       Court hereby approves the parties’ agreement and ORDERS as follows:

       1.      The parties’ ownership interest in two Hungarian power plants, known as the
               Dunamenti and Vertesi Plants, is hereby PARTITIONED such that [Hagey]
               owns a 50% divided interest and [Horvath] owns a 50% divided interest in
               the shares of stock previously issued to the parties . . . .

       ....

       All provisions of the parties’ [divorce decree] that pertain to the schedule of payment
       of dividends to each party shall remain in full force and effect, and are not modified
       by this Order, including, but not limited to, the schedule for dividing the dividends
       and other payments.


We agree with the parties that this provision is unambiguous. It clarifies the decree’s ambiguity by

explaining that the parties own shares in two Hungarian power plants. It then modifies the decree’s

division of property by awarding each party one-half of the Dunamenti and Vertesi shares. Finally,

it stipulates that the decree’s payment plan remains in effect as written. Thus, the 2006 agreed order

                                                  7
(1) redefines the parties’ interest from shares in one unidentified Hungarian power plant to shares

in the Vertesi and Dunamenti power plants, (2) awards each party one-half of that interest, and

(3) provides that the divorce decree’s payment plan regarding that newly modified interest remain

in effect as written. Accordingly, the trial court erred in its judgment that the decree as modified by

the 2006 agreed order applied only to the Dunamenti stock and, as a result, in its division of the

Vertesi sale proceeds.

               Hagey argues that the 2006 agreed order awards her a one-half interest in both power

plants, but that the payment plan in the original decree only applies to the Dunamenti interest. Under

this interpretation, the 2006 agreed order clarifies the decree’s ambiguous reference to the parties’

power-plant interest by specifying how the interest is to be divided, but does not clarify from which

power-plant interest the $185,000 payments are to be made. This is not a reasonable interpretation

because it suggests that the parties limited their clarification of an ambiguity to only one effect of

the ambiguity, rather than resolving the same ambiguity throughout the same provision of the

original decree.

               Horvath, on the other hand, contends that both the decree and the 2006 agreed order

apply in determining the correct division of the Vertesi sale proceeds. He asserts that: first, those

funds must be used to satisfy the remaining payments due under the decree’s payment plan—i.e.,

$5351.99 to Hagey and $185,000 to him—then the parties divide the remaining $89,929.89 of the

Vertesi proceeds equally under the terms of the 2006 agreed order. Horvath’s interpretation is

substantially correct, but it ignores the language in the decree specifying that the $185,000 payments

must be paid from Horvath’s interest. Horvath’s construction only works if the $185,000 payments

come from both his and Hagey’s interests in the proceeds. But the divorce decree’s payment plan

                                                  8
is written in terms of Horvath’s duty to make the payments from Horvath’s interest: it requires

Horvath to pay the $185,000 payments from the proceeds “he receives” from “his interest” in the

power plant ownership. By expressly retaining the payment schedule from the original division of

property, the parties agreed that Horvath’s payments to Hagey must be made solely from Horvath’s

interest in the Hungarian power plants. After the 2006 agreed order, Horvath’s interest is one-half

of the Vertesi shares and one-half of the Dunamenti shares.

               Construing these two agreements, we hold as follows. Under the terms of the original

decree and based on the trial court’s finding that the decree applied to the Dunamenti power plant,

Horvath owned 100% of the Dunamenti shares. Thus, although subject to the decree’s payment plan,

Horvath owned all “monies that he receive[d] in profit distributions and/or liquidation of his

interest” prior to the 2006 agreed order. As a result, all payments made pursuant to that payment

plan prior to the 2006 agreed order are credited to reduce Horvath’s obligation under the payment

plan. As a result of the 2006 agreed order, Horvath and Hagey each owned 50% of the shares of

stock in each power plant after that order was rendered. Thus, they each owned half of any proceeds

generated from those shares of stock by dividend, liquidation, or otherwise, after the 2006 agreed

order. Horvath’s half of those proceeds, however, remained subject to the decree’s payment plan.

Consequently, to the extent that he had not previously satisfied the $185,000 payments under the

terms of the payment plan prior to that time, Horvath must make those payments from his one-half

of the Vertesi sale proceeds.

               Having construed these two agreements, we must now enforce those agreements

as written to determine the correct disposition of the Vertesi proceeds at issue here.         See

Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009); Shanks, 110 S.W.3d at 449. At trial, the parties

                                                9
stipulated that (1) during the period between 2001 and June 2008, the Dunamenti power plant

declared dividends in the years 2000, 2001, 2002, 2004, 2005, and 2006; (2) the Vertesi power plant

declared no dividends during any time the parties owned shares of stock in that plant, (3) Horvath

paid Hagey $179,648.01 from Dunamenti dividends between 2000 and June 2008, and (4) the

Vertesi stock sold for $280,281.88 on December 11, 2007.

               Because the Vertesi sale took place after the 2006 agreed order, Horvath and Hagey

each own half of the proceeds from that sale—i.e., $140,140.94. Horvath’s half of these sale

proceeds is subject to the decree’s payment plan; thus, Horvath must pay from his half of the

proceeds the remaining balance from the $185,000 obligation to Hagey under the payment plan,

which is $5,351.99 based on the parties’ stipulation that Hagey already received $179,648.01 of the

Dunamenti dividends. Therefore, we hold that under the terms of the parties’ agreements Hagey is

entitled to $140,140.94 of the Vertesi proceeds as her one-half share, plus $5,351.99 from Horvath’s

share of the Vertesi proceeds as her final payment under the payment plan, for a total of $145,492.93.

Horvath is entitled, under the terms of the parties’ agreement, to the remaining $134,788.95.


Attorney’s Fees and Expenses

               In his second issue, Horvath challenges the trial court’s award of attorney’s fees and

bookkeeping expenses to Hagey. Specifically, Horvath argues that (1) the attorney’s fees were not

properly segregated, (2) Hagey was not entitled to all her attorney’s fees because she was not

successful on all her claims, (3) the evidence was legally and factually insufficient to support the

reasonableness of the amount of attorney’s fees awarded, and (4) there was no legal basis for an

award of bookkeeping expenses.


                                                 10
                We review a trial court’s decision to grant or deny attorney’s fees under an abuse of

discretion standard. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). A trial court abuses its

discretion if it acts without reference to any guiding rules and principles. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). To determine whether a trial court abused

its discretion, we must determine whether its action was arbitrary or unreasonable. Id. at 242.

                Whether attorney’s fees are reasonable is a question of fact determined by the fact-

finder, which determination we review for factual and legal sufficiency of the evidence. Bocquet,

972 S.W.2d at 21. For a legal sufficiency challenge, we review the evidence in the light most

favorable to the judgment, crediting favorable evidence if a reasonable fact finder could, and

disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson,

168 S.W.3d 802, 807 (Tex. 2005). We will sustain a legal sufficiency complaint if the record reveals

(1) a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of

evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence

offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes

conclusively the opposite of a vital fact. Id. at 810. In reviewing factual sufficiency of the evidence,

we must consider and weigh all the evidence and should set aside the judgment only if it is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v.

Bain, 709 S.W.2d 175, 176 (Tex. 1986).

                Horvath asserts that the trial court erred in awarding attorney’s fees to Hagey because

she failed to segregate her fees between claims for which she was entitled to recover attorney’s fees

and those for which she was not. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313

(Tex. 2006) (holding that “if any attorney’s fees relate solely to a claim for which such fees are

                                                  11
unrecoverable, a claimant must segregate recoverable from unrecoverable fees”). Hagey argues that

Horvath waived his segregation argument because he did not timely dispute Hagey’s failure to

segregate attorney’s fees. We agree. “[I]f no one objects to the fact that the attorney’s fees are not

segregated as to specific claims, then the objection is waived.” Green Int’l, Inc. v. Solis, 951 S.W.2d

384, 389 (Tex. 1997). In a bench trial, such as was held here, the segregation issue must be raised

at trial. Chambers v. Ochiltree, No. 03-04-00143-CV, 2004 WL 2814288, at *5 (Tex. App.—Austin

Dec. 9, 2004, no pet.) (citing Solis, 951 S.W.2d at 389). Here, Horvath raised the segregation issue

for the first time in a motion for new trial filed after the court had issued its ruling. Accordingly,

Horvath’s segregation objection was untimely and, thus, any error is waived. See Red Rock Props.

2005 Ltd. v. Chase Home Fin., L.L.C., No. 14-08-00352-CV, 2009 WL 1795037, at *6-7

(Tex. App.—Houston [14th Dist.] June 25, 2009, no pet.) (mem. op.) (holding that raising

segregation issue for first time in motion for new trial was untimely and therefore waived).

               We next address Horvath’s contention that the trial court erred in awarding attorney’s

fees because Hagey was not successful on all her claims. To the extent that this is a complaint

regarding Hagey’s failure to segregate her fees, Horvath waived this issue for the reasons discussed

above. To the extent that this complaint addresses the trial court’s authority to award these

attorney’s fees, however, we will address this issue.

               Not all statutes or contracts authorizing the award of attorney’s fees limit recovery

of those fees to the prevailing party in the suit. See, e.g., Tex. Civ. Prac. & Rem. Code Ann.

§ 37.009 (West 2008) (authorizing award of “reasonable and necessary attorney’s fees as are

equitable and just” in declaratory judgment action). Here, however, the parties’ divorce decree



                                                  12
provides for an award of attorney’s fees incurred in connection with the decree’s division of

property:


                In the event it becomes necessary to institute legal action to enforce
        compliance with the terms of this Agreement or by reason of the breach by either
        party of this Agreement, then the parties agree that at the conclusion of such legal
        proceeding, the losing party shall be solely responsible for all legal fees and cost
        incurred by the other party, such fees and cost to be taxed by the court. The amount
        so awarded shall be in the sole discretion of the presiding judge and the award shall
        be made without regard to the financial ability of either party to pay, but rather shall
        be based upon the fees and expenses determined by the court to be reasonable and
        incurred by the prevailing party.


(Emphasis added.) A “prevailing party” is a party who “successfully prosecutes the action or

successfully defends against it, prevailing on the main issue, even if not to the extent of her original

contention.” Robbins v. Capozzi, 100 S.W.3d 18, 27 (Tex. App.—Tyler 2003, no pet.); see Dear

v. City of Irving, 902 S.W.2d 731, 739 (Tex. App.—Austin 1995, writ denied).

                The main objective of Hagey’s suit here was to obtain a favorable distribution of the

Vertesi sale proceeds. Specifically, Hagey asked the trial court to find that (1) she was entitled

$140,140.94 of the Vertesi proceeds as her one-half ownership of that property interest, (2) she was

entitled to an additional $5,351.91 from the Vertesi sale proceeds as the unpaid amount under the

decree’s payment plan, and (3) Horvath was solely responsible for a loan debt related to the power

plant interest. She also asked the trial court to enforce the decree’s medical support provisions,

which issue the parties settled prior to trial, and to find Horvath in contempt for discovery violations.

In contrast, Horvath asked the trial court to distribute $229,964.98 of the Vertesi sale proceeds to

him and $50,316.89 to Hagey. Horvath also asked the trial court to disregard a loan Horvath made

in connection with the power plant shares of stock.

                                                   13
                The trial court found that Hagey was not entitled to the $5,351.91 dividend payment,

but found that she was entitled to $140,140.94 as her one-half ownership of the Vertesi stock and

to $15,171.44 as repayment for the loan associated with the power plant stock, for a total award of

$155,312.38 from the Vertesi stock sale. Based on the relief requested and the trial court’s division,

we cannot say that the trial court abused its discretion in determining that Hagey was the prevailing

party. Accordingly, it was not error for the trial court to award Hagey attorney’s fees.4

                We next address Horvath’s contention that the trial court’s award of attorney’s fees

and expenses was not reasonable. When determining an award’s reasonableness, the fact-finder

should consider the following factors: (1) the time and labor required, the novelty and difficulty of

the questions involved, and the skill required to perform the legal service properly; (2) the likelihood

that the acceptance of the particular employment will preclude other employment by the lawyer;

(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 by 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 results obtained or uncertainty of collection before the legal services have been

rendered. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

                Here, the trial court awarded Hagey $56,830 for attorney’s fees and expenses based

on its findings of fact that Hagey had incurred $6,000 for representation by Hungarian attorney



       4
          Further, our opinion giving effect to the literal language of the decree as modified has
resulted in a division that is greater than the trial court’s division. See Shanks v. Treadway, 110
S.W.3d 444, 449 (Tex. 2003) (holding that appellate court must enforce decree as written).

                                                  14
Karancsi Erika, $48,830 in attorney’s fees for legal representation by Scott R. Kidd, and $2,000 for

bookkeeping expenses. To support of her request for these fees, Hagey testified as follows:


       Q:      Have you paid Karancsi Erika any money?

       A:      Yes, I have.

       Q:      And how much have you paid her?

       A:      $6,000 to date.

       ....

       Q:      Now when you—when I first started representing you, I was at Brown
               McCarroll, correct?

       A:      Correct.

       Q:      And you’ve paid Brown McCarroll some $6,300, correct?

       A:      Correct.

       Q:      Did you hire anybody else?

       A:      Scott Kidd.

       Q:      Okay. And—

       A:      Karancsi Erika.

       Q:      Karancsi Erika. With regard to—and for getting—we received some money
               today with regard to medical reimbursement, right?

       A:      Yes.

       Q:      And have you over the—in order to keep track of all that, for four kids, used
               a bookkeeper to keep—

       A:      Yes, I did.

       Q:      And submit statements to Mr. Horvath monthly?

                                                15
       A:      Absolutely.

       Q:      What have you paid your bookkeeper to keep track of that stuff?

       A:      $2,000. $25 an hour is her charge, and it has been detailed.


Hagey’s attorney, Scott R. Kidd, also testified in support of Hagey’s request for attorney’s fees.

Specifically, Kidd testified that he had been licensed in Texas since 1972 and had been board

certified in civil trial and personal injury law for approximately twenty years. Regarding his fees,

Kidd testified as follows:


               I was hired by Ms. Hagey in December of ‘07, and I have—while I was still
       at Brown McCarroll. While at Brown McCarroll, the hourly rate which I am
       charging her and which I believe is a reasonable rate for the work in Travis County
       is $375 an hour. I charge—I was charging her that rate at Brown McCarroll and am
       now.

               The fees that I charged at Brown McCarroll were $6,228, I believe. And
       since I have left Brown McCarroll, I have billed her, through the end of last month,
       which was paid, the sum of $22,627. Through yesterday, considering the amount of
       time that I’ve put into it this month at that hourly rate, there is $19,975 of additional
       time that has been incurred.


Horvath’s attorney did not cross-examine Hagey or Kidd about the reasonableness of the fees.

               Regarding the trial court’s award of the attorney’s fees for Kidd’s representation,

Kidd testified about his qualifications and experience as an attorney, his hourly rate, which he

testified was reasonable, and about the total fees Hagey incurred from his representation. Although

this testimony did not address each of the Arthur Andersen factors, a trial court is not required to

receive evidence on each of these factors. See Arthur J. Gallagher & Co. v. Dietrich, 270 S.W.3d

695, 706 (Tex. App.—Dallas 2008, no pet.). A trial court can look at the entire record, the evidence


                                                  16
presented on reasonableness, the amount in controversy, the common knowledge of the participants

as lawyers and judges, and the relative success of the parties. In re A.B.P., 291 S.W.3d 91, 98 (Tex.

App.—Dallas 2009, no pet.). Thus, for example, the trial court here could have divided the total

amount of Hagey’s attorney’s fees by her attorney’s hourly rate to arrive at the total number of hours

spent on this matter. Also, having granted judgment in this matter after a full trial on the merits, the

trial court was aware of the dispute and the relative success of the parties. Finally, Horvath did not

contradict Hagey and Kidd’s testimony regarding attorney’s fees. See Ragsdale v. Progressive

Voters League, 801 S.W.2d 880, 882 (Tex. 1990). “Testimony from a party’s attorney about a

party’s attorney’s fees is taken as true as a matter of law if the testimony ‘is not contradicted by any

other witness and is clear, positive, direct, and free from contradiction.’” In re A.B.P., 291 S.W.3d

at 98 (citation omitted). “This is especially true where the opposing party had the means and

opportunity to disprove the testimony, but failed to do so.” Id. For all these reasons, we conclude

that the evidence is legally and factually sufficient to support the award of $48,830 as attorney’s fees

for Kidd’s representation of Hagey.

                In contrast, the only evidence supporting the trial court’s award of $6,000 as

attorney’s fees for Karancsi Erika’s representation was Hagey’s lay testimony that she paid Erika

$6,000. Expert testimony is required to support an award of attorney’s fees. Woollet v. Matyastik,

23 S.W.3d 48, 52 (Tex. App.—Austin 2000, pet. denied). Further, there was no evidence of any

Arthur Andersen factors and without evidence of at least some of these factors, there is no

meaningful way for the fact finder to determine if the fees are in fact reasonable and necessary.

Arthur Andersen, 945 S.W.2d at 819. Accordingly, the evidence was legally insufficient to support



                                                  17
the trial court’s award of $6,000 as attorney’s fees for Karancsi Erika’s representation. See Bocquet,

972 S.W.2d at 21.

                Finally, Horvath contends that trial court erred in awarding $2,000 to Hagey for

bookkeeping because it had no authority to award these expenses and because the evidence was

legally and factually insufficient to support the award’s reasonableness. Hagey asked for these

bookkeeping expenses in connection with her request to enforce the decree’s medical support

provisions for the parties’ children. Thus, assuming without deciding that the trial court was

authorized to award these expenses as “reasonable attorney’s fees and expenses” under the family

code, Hagey was required to offer evidence that the amount was reasonable. See Tex. Fam. Code

Ann. § 106.002 (West 2009). But the only evidence supporting this award was Hagey’s testimony

that she paid a bookkeeper $2,000 to “keep track of” medical reimbursement “stuff.” Neither Hagey

nor Kidd testified that these expenses were reasonable, nor did Hagey offer any additional evidence

about the expenses that would allow the trial court to determine that they were reasonable.

Accordingly, Hagey did not provide legally sufficient evidence of the reasonableness of her

bookkeeping expenses.


Hagey’s Cross-Appeal

                In a single issue, Hagey argues that it was error for the trial court to deny her motion

to reopen the evidence to submit her appellate attorney’s fees evidence. See Tex. R. Civ. P. 270

(“When it clearly appears to be necessary to the due administration of justice, the court may permit

additional evidence to be offered at any time . . . .”). The record indicates that the trial court did not

rule on Hagey’s motion, which Hagey filed seven days after Horvath filed his notice of appeal in this


                                                   18
case. Generally, when an appeal is perfected to a court of appeals, that court “acquires plenary

exclusive jurisdiction over the entire controversy.” Ammex Warehouse Co. v. Archer, 381 S.W.2d

478, 482 (Tex. 1964) (citations omitted). Thus, the trial court lacked jurisdiction to grant Hagey’s

motion to reopen the evidence and, accordingly, did not err when it failed to rule on Hagey’s motion.

We overrule Hagey’s issue.


                                         CONCLUSION

               We reverse the trial court’s division of the Vertesi proceeds and render judgment that

under the terms of the parties’ agreements Hagey is entitled to $145,492.93 of the proceeds and

Horvath is entitled to $134,788.95 of the proceeds. We reverse the trial court’s award of

bookkeeping expenses and render judgment that Hagey take nothing on that claim. Finally, we

modify the trial court’s judgment for attorney’s fees to award Hagey $48,830 in attorney’s fees. As

modified, we affirm the remainder of the judgment.5



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Pemberton and Henson

Modified and, as Modified, Affirmed in part; Reversed and Rendered in part

Filed: May 6, 2011




       5
         In her motion for rehearing, Hagey suggests that our opinion fails to account for the
$15,171.44 award that we did not review here because it was not challenged by either party. We
simply note that, as modified, we have affirmed the remainder of the trial court’s judgment.

                                                 19
