Opinion issued August 15, 2019




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-18-00340-CV
                            ———————————
                    SUNDANCE ENERGY, INC., Appellant
                                         V.
                       NRP OIL AND GAS LLP, Appellee


                    On Appeal from the 125th District Court
                             Harris County, Texas
                       Trial Court Case No. 2015-47595


                          MEMORANDUM OPINION

      Appellant, Sundance Energy, Inc. (“Sundance”), challenges the trial court’s

judgment entered, after a trial on damages and a bench trial on attorney’s fees, in

favor of appellee, NRP Oil and Gas LLP (“NRP”).            In two issues, Sundance

contends that the evidence is legally and factually insufficient to support the trial
court’s award of attorney’s fees to NRP and the evidence is legally and factually

insufficient to support the jury’s damages award because the jury “failed to

account for uncontroverted evidence” of an offset amount.

       We affirm.

                                     Background

       In its amended petition, NRP alleged that it entered into a Purchase and Sale

Agreement (the “PSA”) with Sundance to purchase “Sundance’s interest in certain

oil and gas leases and wells located in three North Dakota counties.” The parties

agreed to a purchase price of “approximately $35 million.” Sundance retained “the

broad obligation to pay for certain pre-sale liabilities (the ‘Retained Liabilities’)

associated with drilling, completing, and operating the wells included among the

assets purchased.” And, “NRP agreed to be responsible for liabilities accruing

after the sale.”

       NRP alleged that the PSA provided:

       [A]ll liabilities of Seller for capital expenses, joint interest billings,
       lease operating expenses, lease rentals, shut-in payments, drilling and
       completion expenses, workover expenses, geological costs,
       geophysical costs, and other exploration or development expenditures
       and costs (collectively, “Property Expenses”) that are assessed for or
       attributable to periods of time or operations during Seller’s
       ownership of the Assets prior to the Effective Time (regardless of
       whether such operations were proposed or approved after the
       Effective Time), including all costs and expenses relating to drilling
       and completion of wells proposed to and approved by Seller prior to
       the Effective Time (regardless of whether such drilling and
       completion, or the costs incurred in connection with such activities

                                           2
       occurred before or after the Effective Time); provided, however, that
       Property Expenses shall not include (i) costs and expenses relating to
       plugging or abandonment of the Wells, which are assumed by Buyer
       as Assumed Liabilities regardless whether such obligations arise prior
       to or after the Effective Time, or (ii) costs and expenses relating to
       environmental matters, which are addressed exclusively in Article 6
       and Article 14[.]

(alterations in original.) The “Effective Time” is defined in the PSA as “9 a.m.

(Central Standard Time) on September 1, 2013.”

       NRP further alleged that Sundance “agreed to cover (or reimburse NRP for)

the Retained Liabilities in the indemnification provisions set forth in ¶ 14.1 of the

PSA,” which provided that Sundance agreed to indemnify NRP for “ALL LOSSES

ARISING FROM OR COMPRISING THE RETAINED LIABILITIES.” And

Sundance “further agreed that its obligation to indemnify NRP for Retained

Liabilities would continue after the sale ‘for a period in perpetuity.’”

       Before and after the sale, NRP received a first set of joint-interest billings

(“JIBs”) totaling $146,000 “from companies operating wells included among” the

assets purchased in the PSA.       These JIBs “requested payment for costs that

pre-dated the Effective Time” and were subject to the indemnity provisions in the

PSA.     NRP paid these JIBs, and later forwarded them to Sundance for

reimbursement.     Sundance agreed that these JIBs were part of the Retained

Liabilities and paid the requested amount of $146,000 in full. NRP subsequently

“received additional JIBs totaling approximately $900,000 for liabilities that, just


                                           3
like the initial JIBs, were also ‘assessed for or attributable to’ Sundance’s

ownership of the Assets before the Effective Time.” NRP paid the JIBs and again

forwarded a request to Sundance for reimbursement pursuant to the PSA.

However, Sundance refused to reimburse NRP for the additional JIBs.

      NRP asserted causes of action against Sundance for breach of contract and

for a declaratory judgment.      It sought compensatory and actual damages,

declarations, pre- and post-judgment interest, and reasonable and necessary

attorney’s fees pursuant to Chapters 37 and 38 of the Texas Civil Practices and

Remedies Code.

      In its amended answer, Sundance asserted a general denial as well as the

affirmative defenses of “SETTLEMENT/RELEASE,” “ENTITLEMENT TO

OFFSET,” “WAIVER,” and “ESTOPPEL/QUASI-ESTOPPEL.”

      At trial, David Hartz testified that he was the vice president of the oil and

gas division of NRP at the time that the PSA was signed. And he joined NRP in

late 2010 to build its oil and gas division. Under Hartz’s supervision, NRP became

aware that Sundance had a “larger portfolio” of assets in the Williston Basin in

North Dakota and Montana.

      Hartz explained that Sundance’s portfolio consisted of “non-operated”

assets, meaning the assets were drilled, completed, produced, and administered by

another partner called the “operating” partner. “The non-operator typically [was] a


                                        4
leaseholder within the same unit or designated drilling spacing unit,” which had to

“approve certain operations,” “give their consent to the operator” for certain

operations, and then “pay their share of the invoices and then collect their share of

the revenue.” The majority of the wells purchased by NRP were operated by EOG

Oil and Gas (“EOG”).

      Hartz further testified that before executing the PSA, NRP performed a great

amount of due diligence to determine the value it would place upon the properties

to be purchased. At that time, there was a group of wells that was being completed

and NRP was “not provided information to say how much capital or how much

they had paid for those operations to date.” In other words, NRP was aware that

there were still outstanding bills for this group of wells that would be sent by the

operating partner, EOG.      However, Sundance could not provide information

regarding “how much was remaining on those wells to be drilled” for NRP to

analyze the remaining costs for purposes of valuing the assets.     Hartz explained

that this information was typically provided in an “operating” statement in oil and

gas transactions—“which is essentially an income statement for . . . particular

properties and capital.” Due to this missing information, NRP and Sundance

reached a compromise where Sundance agreed to cover any remaining costs on the

assets so that NRP would not “have to come out of pocket for any of this in the




                                         5
future once [it] own[ed] the assets.” Accordingly, NRP made an offer to purchase

the assets, valuing the assets based on the compromise.

      Hartz also testified that the PSA, which was entered into evidence, provided

that Sundance had certain Retained Liabilities that it would be responsible for even

after NRP owned the assets.      Specifically, Hartz testified that these Retained

Liabilities included: (1) expenses for large capital items such as equipment—

typically related to drilling and production of a well and not ongoing maintenance;

(2) JIBs—which were “essentially the bills or the invoices . . . receiv[ed] from the

operator”; (3) lease operating expenses—which are “essentially the normal

operating expenses,” such as emptying the tank where oil was stored or electrical

and water bills; (4) lease rentals if a property was leased from the government or a

private landowner; (5) shut-in payments, if the land was leased, for shut-in or

non-producing wells; (6) drilling completion expenses—a broad category of

expenses shared by those in a partnership to drill, complete, and “put a well under

production”; (7) workover expenses—which were incurred to “reestablish

production” for a well when something had gone wrong; (8) geological costs, such

as expenses for data “in the exploration or development of prospects”;

(9) geophysical costs, such as seismic or other data collected relating to the “field

of geophysics”; (10) and “other exploration or development expenditures and

costs” which was a “catchall for remaining expenses.” However, Sundance’s


                                         6
liability for these costs was limited to “costs that [were] assessed for or attributable

to periods of time or operation during” Sundance’s “ownership of the assets prior

to the effective time.” Hartz testified that, per the PSA, this indemnification was to

continue in perpetuity. He further explained that NRP would pay for any “normal

operating expenses associated with owning the assets or anything that [NRP]

would approve during [its] ownership of the assets, drilling of a new well, et

cetera” incurred after the effective date of the PSA, which was September 1, 2013.

      Hartz explained that following execution of the PSA, NRP made several

requests for “indemnification” pursuant to the PSA based on JIBs it received from

EOG. The first was for $146,304.85. Sundance quickly responded to NRP’s

request by admitting its responsibility to cover the expenses and paid NRP the

requested amount.      After receiving additional JIBs from EOG, NRP again

requested indemnification from Sundance. NRP made subsequent requests for

reimbursement, which remained unpaid at the time of trial. In total, Hartz testified

that NRP was seeking damages based on its requests for indemnification to

Sundance in the amount of $988,254.

      At trial, a copy of the PSA was admitted into evidence. It provides, in

relevant parts, as follows:

            4.1 Closing Adjustments.       With respect to matters that can
      be determined as of the Closing, Seller shall prepare, in accordance
      with the provisions of this Article 4, a statement (the “Closing
      Adjustment Statement”) with relevant supporting information
                                           7
setting forth each adjustment to the Base Purchase Price submitted by
Seller in accordance with this Agreement. Seller shall submit the
Closing Adjustment Statement to Buyer, together with all records or
data supporting the calculation of amounts presented on the Closing
Adjustment Statement, no later than five (5) business days prior to the
scheduled Closing Date. Prior to the Closing, Buyer and Seller shall
review the adjustments proposed by Seller in the Closing Adjustment
Statement and shall work in good faith to arrive at agreed adjustments.
Agreed adjustments shall be taken into account in computing any
adjustments to be made to the Base Purchase Price at the Closing. To
the extent actual figures are not available, estimates shall be used
subject to final adjustments as described in Section 4.4 below.

....

       4.4 Post-Closing Adjustments. A post-closing adjustment
statement (the “Post-Closing Adjustment Statement”) shall be
prepared and delivered by Seller to Buyer within ninety (90) days
after the Closing, proposing further adjustments to the calculation of
the Purchase Price based on the information then available. Seller or
Buyer, as the case may be, shall be given access to and shall be
entitled to review and audit the other Party’s records pertaining to the
computation of amounts claimed in such Post-Closing Adjustment
Statement. Within fifteen (15) days after receipt of the Post-Closing
Adjustment Statement, Buyer shall deliver to Seller a written
statement describing in reasonable detail its objections (if any) to any
amounts or items set forth on the Post-Closing Adjustment Statement.
If Buyer does not raise objections within such period, then the
Post-Closing Adjustment Statement shall become final and binding
upon the Parties at the end of such period. If Buyer raises objections,
the Parties shall negotiate in good faith to resolve any such objections.
If the Parties are unable to resolve any disputed item within (15) days
after Buyer’s receipt of the Post-Closing Adjustment Statement, any
such disputed item shall be submitted to a nationally recognized
independent accounting firm mutually agreeable to the Parties who
shall be instructed to resolve such disputed item within thirty (30)
days. The resolution of disputes by the accounting firm so selected
shall be set forth in writing and shall be conclusive, binding upon the
Parties and non-appealable, and the Post-Closing Adjustment
Statement shall become final and binding upon the Parties on the date
                                   8
      of such resolution. The fees and expenses of such accounting firm
      shall be paid one-half by Buyer and one-half by Seller. After the
      Post-Closing Adjustment Statement has become final and binding on
      the Parties, Seller or Buyer, as the case may be, shall pay to the other
      such sums are due to settle accounts between the Parties due to
      difference between the estimated Purchase Price paid pursuant to the
      Closing Adjustment Statement and the actual Purchase Price set forth
      on the Post-Closing Adjustment Statement.

      Article 14 provides that Sundance as the Seller “SHALL TO THE

FULLEST       EXTENT       PERMITTED         BY   LAW,     RELEASE,      DEFEND,

INDEMNIFY,        AND      HOLD      HARMLESS          BUYER . . . FROM          AND

AGAINST . . . . ALL LOSSES ARISING FROM OR COMPRISING THE

RETAINED LIABILITIES.”          Further, “Seller shall be obligated to indemnify

Buyer under Section 14.1(c) for any Loss arising from the Retained Liabilities for

a period in perpetuity.”

      Cathy Anderson testified that she was the Chief Financial Officer of

Sundance at the time NRP made its requests for indemnification, however she was

not involved in negotiating or drafting the PSA. Anderson testified that Sundance

paid NRP’s initial request for indemnification because it was very close to the

deadline allowed in the PSA for post-closing adjustments and they “were trying to

not cause an issue,” although they believed that the charges “should have [been]

included” in any post-closing adjustments. After receiving NRP’s second request

for indemnification, Sundance began to “really dig[] into the details and look[] at

what was coming through.”       Anderson explained that the PSA provided that
                                         9
Sundance would continue to cover “drilling and completion costs” for the wells

that had been drilled close to the effective date of the PSA. And after “digging

in[]”, Sundance realized “other” charges that did not concern drilling and

completion were “coming through.” Sundance then hired a “joint interest auditor”

to research the charges in the additional JIBs for which NRP sought

reimbursement.

      According to Anderson, Sundance ultimately rejected NRP’s request for

reimbursement for the remaining amounts. And Anderson sent Hartz a letter, a

copy of which was admitted into evidence at trial, explaining Sundance’s

reasoning behind refusing to reimburse NRP. That letter, in part, reads as follows:

      We have completed our review of the supplemental billings from
      EOG you sent us beginning last July. After analyzing the specific
      items and reviewing the PSA, we have concluded that Sundance does
      not have responsibility for these billings, and so we respectfully
      decline your request to reimburse NRP for them. I will explain our
      thinking.

      First, $301,503 of the charges related to the installation of facilities,
      such as tanks, gathering lines, etc. Facilities costs are not “drilling
      and completion costs” and Sundance never agreed to retain liability
      for facilities costs . . . .

      Second, the remaining $606,063 of the JIBs do cover costs that would
      be classified as drilling and completion costs, but we think that
      responsibility for those costs was finally settled between the parties at
      final settlement. We base this conclusion on the language in Section
      4.4 of the PSA, which states that the Post-Closing Adjustment
      Statement shall be “final and binding” on the parties either if not
      challenged or following resolution of any challenge by the accounting
      firm. Section 4.1 of the PSA provides for settling allocations of costs
                                         10
      between the parties on a preliminary basis at closing based on
      estimates, “subject to final adjustments as provided in Section 4.4
      below.” We think the PSA is clear that the settlement of Property
      Expenses in the Post-Closing Adjustment Statement was final and
      binding on the parties.

      With respect to the letter, Anderson testified that everyone agreed that final

was final.” She testified that they “all signed the final post-closing settlement

statement,” which “ended it and that was what was the agreement of the parties.”

She further explained that Sundance could have, and should have, sought an

adjustment for the amount it seeks in an offset, but that it did not realize its

oversight until after the time for adjustment under the PSA had passed. Anderson

admitted that there was no language in the PSA’s Article 14 indemnification that

appeared to limit NRP’s right to indemnification based on the post-closing

adjustment period.

      After deliberating, the jury returned a verdict on liability in favor of NRP as

follows:

      Question No. 1:

             Did Sundance fail to comply with the PSA?

             Answer “Yes” or “No.”

             Answer:     YES

      ....




                                         11
      Question No. 2:

             Was Sundance’s failure to comply excused?

             Answer “Yes” or “No.”

             Answer:      NO

      ....

      Question No. 3:

            What sum of money, if any, if paid now in cash, would fairly
      and reasonably compensate NRP for its economic damages, if any,
      that resulted from Sundance’s failure to comply with the PSA?

      ....

             Answer:      $988,254

      Question No. 4:

          Do you find Sundance is entitled to any offset of any
      amounts found by you in response to Question No. 3?

             Answer “Yes” or “No.”

             Answer:      NO

      The parties agreed to try the attorney’s fee portion of the case to the bench.

After the jury returned its verdict, the trial court adjourned the trial on attorney’s

fees until a time when the parties were able to reconvene. Originally, NRP set the

hearing for a determination of attorney’s fees for October 20, 2017. On October

16, 2017, Sundance filed objections to NRP’s failure to properly disclose its

attorney’s fees witnesses and evidence. NRP reset the hearing twice, and the
                                         12
attorney’s fees issue was tried to the bench on January 12, 2017—nearly six

months after the initial trial had begun.

      At the hearing, the trial court decided to admit NRP’s attorney’s fees

testimony and other evidence, despite its untimely disclosure. Pursuant to Texas

Rule of Civil Procedure 193, the trial court determined that there was no unfair

surprise or prejudice to Sundance in admitting NRP’s evidence and testimony on

the issue of attorney’s fees, considering, among other things, that Sundance had the

invoices for one hundred days before the hearing and the disclosures were made

seventy-four days before the hearing. The trial court also offered Sundance a

continuance of the hearing to allow it to “conduct any additional discovery into the

subject matter of the attorney[’s] fees” that was to be addressed at the hearing.

Sundance did not seek a continuance.

      Matthew Henneman, an attorney for NRP, testified that he has been licensed

in the State of Texas for approximately 23 years, he has tried multiple jury trials

and arbitrations in Harris County and consistently handles “large complex

commercial litigation and contract disputes.” He further testified that he is familiar

with the “reasonable, customary, and necessary attorney[’s] fees charged in cases

of this type by attorneys practicing in Harris County[,] Texas and the surrounding

area.” Henneman testified that he was with the firm that represented NRP in this

case and is familiar with the case. The standard hourly rate for a partner, such as


                                            13
Henneman, at his firm is between $525 and $575 per hour and the hourly rate for

an associate is between $235 and $400 per hour, “depending on experience and

other factors.”

      Henneman reviewed the entire file for the case, including all “timekeepers”

who worked on the case. The largest amount of time billed in this case by NRP’s

attorneys was attributed to “review of [and] examination of the agreements

between NRP and Sundance, which was the core element and core dispute in th[e]

case.” NRP’s attorneys also reviewed the pleadings, drafted discovery requests

and discovery responses, and participated in multiple depositions and conferences.

Further, attorneys spent time preparing “dispositive motions,” “various pleadings,”

and other motions, preparing for trial, and trying the case. Henneman explained

that he considered the time involved, the skill needed to prosecute the case, other

work that the attorneys could not have taken on because they were fully engaged

on this case, the fee regularly charged by the firms and in Harris County, Texas for

cases of this nature, as well as the amount involved in the verdict—which was over

$900,000. He further considered the nature of the attorney’s relationships with the

clients. And based “on those factors,” it was his “opinion that the fees charged in

this matter [by NRP’s attorneys were] reasonable, customary, and necessary for

this type of matter.” And, although a lot of the discovery that was conducted was

not ultimately used at trial, Henneman testified that the amount of discovery


                                        14
conducted was necessary to do a thorough and complete job litigating the case for

NRP.

       Further, Henneman discounted the fees by twenty-five percent to account for

the work performed on the declaratory-judgment claim, for which fees were not

recoverable and which was dropped by NRP before trial. He also explained that

the median rate charged for commercial litigation in the State of Texas in 2015 was

$295 per hour. Because this was “not a median rate case,” he recommended that

the rate applied “be increased to $350 per hour in this matter.”

       Overall, Henneman concluded that NRP’s recoverable attorney’s fees were

$396,007.75. He explained that he reached this conclusion by multiplying the

number of hours worked on the case—1,137.15—by the rate of $350 per hour. He

then subtracted amounts attributed to the declaratory-judgment claim. Henneman

further testified that “an intermediate appellate court appeal would cost

approximately $50,000” and an appeal to the Texas Supreme Court would “also

cost a similar amount.”

       Phillip Sharp testified as Sundance’s rebuttal witness on the issue of

attorney’s fees. He testified that he has tried more than thirty jury trials and at least

ten bench trials and is familiar with the fees charged by lawyers in the Houston

legal community. Sharp testified that he did not disagree with the hourly rates

charged by NRP’s attorneys, but that “a good deal of the work was not necessary”


                                           15
and, thus, the charges overall were unreasonable. More specifically, he testified

that, in his opinion, “this case sets the record for the most documents produced in

discovery that didn’t have anything in the world to do with the trial.” He explained

that the amount of discovery conducted was extremely excessive given it only took

NRP one day to put on its entire case-in-chief. He also testified that the time of the

attorney who was involved in drafting and negotiating the PSA on behalf of NRP,

and who stayed involved and talked to people during trial, should not be

recoverable by NRP because “the deal lawyer’s fees” should not be recoverable for

a subsequent trial on the subject-matter. Instead, Sharp opined that he would

expect reasonable attorney’s fees in this case to be closer to one-half of those

requested by NRP or around $200,000. Sharp also admitted that he had reviewed a

great number of documents produced in the case and that Sundance did not file a

motion for protection related to the discovery requests served by NRP.

      Following the bench trial on attorney’s fees, the trial court entered judgment

in favor of NRP, awarding NRP damages against Sundance in the amount of

$988,254, without allowing for any offset. It further awarded NRP attorney’s fees

in the following amounts:

         (1) $396,007.75 for representation through trial;

         (2) $50,000.00 for representation through appeal to the court of appeals;
            and



                                         16
         (3) $50,00.00 for representation through an appeal to the Supreme Court
             of Texas.

      Sundance filed a motion for judgment notwithstanding the verdict, arguing,

among other things, that the “attorney[’s] fees evidence was improper and should

have been stricken by the trial court” for failure to timely disclose the evidence,

that the evidence of attorney’s fees was legally and factually insufficient to support

the attorney’s fees award, and that the evidence was legally and factually

insufficient to support the jury’s damages award because the jury failed to award

an offset, of which the evidence was uncontroverted.         The trial court denied

Sundance’s motion for judgment notwithstanding the verdict.

                                Standard of Review

      When, as here, an appellant attacks the legal sufficiency of an adverse

finding on an issue on which it did not have the burden of proof, it must

demonstrate that no evidence supports the finding. Examination Mgmt. Servs., Inc.

v. Kersh Risk Mgmt., Inc., 367 S.W.3d 835, 839 (Tex. App.—Dallas 2012, no pet.).

Under such circumstances, we will sustain a legal sufficiency or “no-evidence”

challenge if the record shows any one of the following: (1) a complete absence

of evidence of a vital fact, (2) rules of law or evidence bar the court 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 scintilla, or (4) the evidence establishes

conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d

                                         17
802, 810 (Tex. 2005). In contrast, when an appellant attacks the legal sufficiency

of a finding on which it bore the burden of proof, it must show not only that no

evidence supports finding, but also that the evidence conclusively proves the

contrary. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). Under this

standard, we reject the challenge unless the evidence proves all vital facts in

support of the challenger’s position as a matter of law. Id. at 624. Regardless of

who bears the burden of proof, in conducting a legal-sufficiency review, we

consider the evidence in the light most favorable to the verdict and indulge every

reasonable inference that supports it. City of Keller, 168 S.W.3d at 822.

      If there is more than a scintilla of evidence to support the challenged finding,

we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs &

Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). “[W]hen the evidence offered

to prove a vital fact is so weak as to do no more than create a mere surmise or

suspicion of its existence, the evidence is no more than a scintilla and, in legal

effect, is no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.

2004) (internal quotations omitted). However, if the evidence at trial would enable

reasonable and fair-minded people to differ in their conclusions, then jurors must

be allowed to do so. City of Keller, 168 S.W.3d at 822. “A reviewing court cannot

substitute its judgment for that of the trier-of-fact, so long as the evidence falls

within th[e] zone of reasonable disagreement.” Id.


                                         18
      When an appellant attacks the factual sufficiency of an adverse finding on an

issue on which it did not have the burden of proof, it must demonstrate that the

adverse finding is so contrary to the overwhelming weight of the evidence as to be

clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.

1986). In conducting a factual-sufficiency review, we examine, consider, and

weigh all evidence that supports or contradicts the fact finder’s determination.

See Dow Chem. Co., 46 S.W.3d at 242; Plas-Tex, Inc. v. U.S. Steel Corp., 772

S.W.2d 442, 445 (Tex. 1989). We note that the fact finder is the sole judge of the

witnesses’ credibility, and it may choose to believe one witness over another; a

reviewing court may not impose its own opinion to the contrary. See Golden Eagle

Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The fact finder may

also resolve inconsistencies in the testimony of any witness. McGalliard v.

Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). We set aside the verdict only if the

evidence is so weak or the finding is so against the great weight and preponderance

of the evidence that it is clearly wrong or manifestly unjust. See Dow Chem. Co.,

46 S.W.3d at 242; Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).




                                        19
                            Sufficiency of the Evidence

      A.     Attorney’s fees

      In its first issue, Sundance argues that the evidence is legally and factually

insufficient to support the trial court’s award of attorney’s fees to NRP.

             1.    Untimely disclosures

      In a portion of its first issue, Sundance asserts that the trial court “failed to

exclude documents supporting NRP’s attorney[’s] fees evidence because NRP

failed to timely produce them.”     It further asserts that because NRP’s evidence

regarding its attorney’s fees should have been excluded, it constitutes no evidence

to support the trial court’s award of attorney’s fees to NRP.

      We review whether a trial court erred in making an evidentiary ruling for an

abuse of discretion. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231,

234 (Tex. 2007). A trial court abuses its discretion if it acts in an arbitrary or

unreasonable manner or without reference to guiding rules or principles. Bowie

Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). We will uphold a trial

court’s evidentiary ruling if any legitimate ground supports the ruling, even if the

ground was not raised in the trial court. Hooper v. Chittaluru, 222 S.W.3d 103,

107 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). And we will not reverse

an erroneous evidentiary ruling unless the error probably caused the rendition of an

improper judgment or prevented a proper presentation of the appeal. See TEX. R.


                                          20
APP. P. 44.1(a); Sw. Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467,

474 (Tex. 1998). In determining whether the erroneous admission or exclusion of

evidence probably resulted in the rendition of an improper judgment, we review

the entire record, and “[t]ypically, a successful challenge to a trial

court’s evidentiary ruling[] requires the complaining party to demonstrate that the

judgment turns on the particular evidence excluded or admitted.” Interstate

Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).

      Texas Rule of Civil Procedure 193.6(a) provides that “[a] party who fails to

make, amend, or supplement a discovery response in a timely manner may not

introduce in evidence the material or information that was not timely

disclosed . . . .” TEX. R. CIV. P. 193.6(a). However, a trial court may admit

untimely disclosed evidence upon a showing of “good cause” or that use of the

evidence would not “unfairly surprise or unfairly prejudice” the other party. Id.

193.6(a)(1), (2). The burden of “establishing good cause or the lack of unfair

surprise or unfair prejudice is on the party seeking to introduce the evidence or call

the witness.” Id. 193.6(b). And “[a] finding of good cause or the lack of unfair

surprise or unfair prejudice must be supported by the record.” Id. However, even

if the party seeking to introduce the evidence at issue does not carry its burden of

establishing the grounds for the exception, the trial court “may grant a continuance

or temporarily postpone the trial to allow a response to be made, amended, or


                                         21
supplemented, and to allow [the] opposing part[y] to conduct discovery regarding

any new information presented by that response.” Id. 193.6(c).

       In this case, the trial court specifically made a finding of no unfair surprise

or unfair prejudice. Additionally, the trial court offered a continuance to Sundance

in order to allow it “to conduct any additional discovery into the subject matter of

the attorney[’s] fees” that was raised by the untimely disclosure.              Sundance

declined a continuance, and the trial court overruled Sundance’s objection and

request to exclude NRP’s evidence of attorney’s fees based on its untimely

disclosure.

       On appeal, Sundance asserts that a continuance in this case would not have

remedied the unfair surprise or prejudice. However, its assertion is based solely on

the bifurcation of the liability and attorney’s fees portions of the trial and the trial

court’s alleged failure to timely reconvene the trial to address the outstanding issue

of attorney’s fees. But the record indicates that Sundance agreed to the bifurcation

of the case and to try the issue of attorney’s fees to the trial court. And Sundance

does not assert that it opposed the allegedly unreasonable delay in commencing the

trial in the trial court, nor does it present any error of that nature to this Court.

       Based on the record below and the arguments presented on appeal, we

cannot conclude that the trial court’s offer of a continuance was insufficient to

remedy any unfair prejudice to Sundance. Accordingly, having refused the trial


                                            22
court’s offer a continuance pursuant to Texas Rule of Civil Procedure 193.6(c),

Sundance cannot now argue that it suffered unfair prejudice by the admission of

NRP’s attorney’s fees evidence. Santos v. Comm’n for Lawyer Discipline, 140

S.W.3d 397, 404 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (party “can

hardly be heard to argue that he was unfairly prejudiced” after declining trial

court’s offer of continuance to conduct discovery on new information); see also,

e.g., Hilburn v. Providian Holdings, Inc., No. 01-06-00961-CV, 2008 WL

4836840, at *11 (Tex. App.—Houston [1st Dist.] Nov. 6, 2008, no pet.) (mem. op.)

(holding admission of expert testimony on attorney’s fees not abuse of discretion,

despite untimely disclosure, where opponent of evidence refused offer of further

discovery and did not demonstrate offer insufficient).

      Accordingly, we hold that the trial court did not err in admitting NRP’s

attorney’s fees evidence.

      We overrule this portion of Sundance’s first issue.

             2.    Reasonable and necessary

      In the remaining portion of its first issue, Sundance asserts that even if we do

not determine that the trial court erred in admitting NRP’s attorney’s fees evidence,

the evidence is legally and factually insufficient to support the trial court’s

attorney’s fees award “pursuant to what is allowable under Texas law.”




                                         23
      The reasonableness of an attorney’s fee award is evaluated by considering

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

question presented and the skill required to properly perform the legal service;

(2) the likelihood that the acceptance of employment precluded other employment

by the attorney; (3) the fee customarily charged in the locality for similar 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

attorney 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);

McMahon v. Zimmerman, 433 S.W.3d 680, 693 (Tex. App.—Houston [1st Dist.]

2014, no pet.). Further, “[t]rial judges can draw on their common knowledge and

experience as lawyers and as judges in considering the testimony, the record, and

the amount in controversy in determining attorney’s fees.”          Zimmerman, 433

S.W.3d at 693 (internal quotations omitted); see also In re Guardianship of

Hanker, No. 01-12-00507-CV, 2013 WL 3233251, at *5 (Tex. App.—Houston [1st

Dist.] June 25, 2013, no pet.) (holding trial judge may “draw[] on her knowledge

of the case, review of the court file, and her experience in other . . . proceedings in

determining whether a requested fee is reasonable”).




                                          24
       Detailed invoices of the work performed by NRP’s attorneys were admitted

into evidence at trial along with the expert testimony of Henneman, an attorney for

NRP.

       Henneman testified that he has been licensed in the State of Texas for

approximately 23 years, he has tried multiple jury trials and arbitrations in Harris

County and consistently handles “large complex commercial litigation and contract

disputes.” He further testified that he is familiar with the “reasonable, customary,

and necessary attorney’s fees charged in cases of this type by attorneys practicing

in Harris County[,] Texas and the surrounding area.” Henneman testified that he

was with the firm that represented NRP in this case and is familiar with the case,

attorneys who worked on the case, and the hourly rates charged for the work

performed by those attorneys.

       Henneman reviewed the entire file for the case and explained that the largest

amount of time billed in this case by NRP’s attorneys was for “review of [and]

examination of the agreements between NRP and Sundance, which was the core

element and core dispute in this case.”       NRP’s attorneys also reviewed the

pleadings, drafted discovery requests and discovery responses, and participated in

multiple depositions and conferences. Further, attorneys spent time preparing

“dispositive motions,” “various pleadings,” other motions, as well as preparing for

trial and trying the case. Although a lot of discovery that was conducted was not


                                         25
used at trial, Henneman testified that the nature of discovery was necessary to do a

thorough and complete job working up the case for NRP.             Henneman also

considered the time involved, the skill needed to prosecute the case, other work

that the attorneys could not have taken on because they were fully engaged on this

case, the fee regularly charged by the firms and in Harris County, Texas for cases

of this nature, as well as the amount involved in the verdict—which was over

$900,000. He testified that in his opinion the fees charged by NRP’s attorneys

were reasonable, customary, and necessary.

      Henneman concluded that the total reasonable number of hours worked on

the case was 1,137.15. He multiplied the number of hours by an adjusted-median

billable rate of $350 per hour and discounted the fees by twenty-five percent for

work performed on the declaratory-judgment claim, for which fees were not

recoverable and which was dropped by NRP before trial. Based on this analysis,

Henneman determined that NRP’s reasonable recoverable attorney’s fees were

$396,007.75. He additionally opined that “an intermediate appellate court appeal

would cost approximately $50,000” and an appeal to the Texas Supreme Court

would “also cost a similar amount.”

      Sharp testified as Sundance’s rebuttal witness on the issue of NRP’s

attorney’s fees. He opined that the hourly rates charged by NRP’s attorneys were

reasonable, but that the overall charges were unreasonable because, with regard to


                                        26
discovery, “a good deal of the work was not necessary.” He explained that he

believed the amount of discovery conducted was excessive given the few

documents actually used as exhibits at trial and that it only took NRP one day to

put on its case-in-chief at trial. Sharp opined that he would expect reasonable

attorney’s fees for NRP in this case to be closer to $200,000.

       Based on our review of the record, we conclude that there was legally and

factually sufficient evidence to support the trial court’s award of attorney’s fees to

NRP.    The detailed invoices and Henneman’s testimony concerning the fees

charged and work performed in this case were some evidence in support of the

award, satisfying the legal sufficiency requirement. Zimmerman, 433 S.W.3d at

694; see also City of Keller, 168 S.W.3d at 827. Further, given the record, the trial

court’s award of attorney’s fees in this case is not so clearly wrong or manifestly

unjust to require reversal for factual insufficiency. This is a complex-commercial

litigation case involving a fully-litigated breach of contract claim related to a PSA

to purchase $35 million of oil and gas assets. There are detailed billing records as

well as Henneman’s testimony regarding the total hours billed, how he reduced

those hours to account for the inability to recover for work performed on the

declaratory-judgment claim, his and the other attorney’s billable rates, the standard

billable rate in the community and what billable rate should be applied in this case,

and the trial court could take judicial notice of the standard and customary fees as


                                         27
well as the content of the case file. Zimmerman, 433 S.W.3d at 694 (citing Cain,

709 S.W.2d at 176).

      Accordingly, we hold that the evidence is legally and factually sufficient to

support the trial court’s award of attorney’s fees in this case.

      We overrule the remaining portion of Sundance’s first issue.

      B.     Offset

      In its second issue, Sundance argues that the evidence is legally and

factually insufficient to support the jury’s damages ward because “the jury failed to

account for uncontroverted evidence of Sundance’s right to an offset.”

      The alleged “uncontroverted” evidence relied upon by Sundance is

testimony from Anderson that NRP’s damages included amounts for items that

were not part of Sundance’s Retained Liabilities in the amount of $382,000. At

trial and on appeal, Sundance’s argument that it is entitled to an offset of damages

is premised upon Section 4.4 of the PSA.1 Section 4.4 required Sundance to

prepare—which it did—a post-closing adjustment statement within ninety days of

closing “proposing further adjustments to the calculation of the Purchase Price

based on information then available.” And Anderson testified that the $382,000




1
      To the extent that Sundance would argue it was entitled to an offset based on
      Article 14 of the PSA, that argument is not properly briefed or raised and, thus,
      waived. See TEX. R. APP. P. 38.1.
                                           28
offset was not included on the post-closing adjustment statement because it was

just missed, but she wished it had been included.

      Accordingly, there is nothing in Anderson’s testimony that would establish

Sundance’s right to an offset pursuant to Section 4.4.         It is undisputed that

Sundance did not request an adjustment to the purchase price in its post-closing

statement for the amount it now requests to be offset because it did not catch the

alleged error in time. And it is indisputable that more than ninety days have passed

since the closing on the PSA.

      We are additionally unpersuaded by Sundance’s argument that NRP’s

damages were only recoverable pursuant to Section 4.4 and not the indemnity

provision in Article 14, and, thus, it should be allowed an offset pursuant to

Section 4.4. The record demonstrates that NRP brought a breach of contract claim

against Sundance based on Sundance’s failure to indemnify it for assumed

liabilities pursuant to Article 14 of the PSA, as it was required to do in perpetuity.

This was the same theory pursued by NRP at trial. The jury found that Sundance

breached the PSA and Sundance does not challenge this finding. The jury further

found that Sundance was not entitled to an offset of damages. To the extent that

Anderson testified that any of the damages sought by NRP were not recoverable

under the Article 14 indemnification provision, this evidence was controverted by

the testimony of Hart which supported NRP’s theory that those damages do fall


                                         29
under the indemnification provision. As such, Anderson’s testimony in that regard

is not uncontroverted. And, in a jury trial, “[j]urors are the sole judges of the

credibility of the witnesses and the weight to give their testimony. They may

choose to believe one witness and disbelieve another. Reviewing courts cannot

impose their own opinions to the contrary.” City of Keller, 168 S.W.3d at 819.

      Thus, we conclude that the record lacks any evidence that Sundance is

entitled to an offset as requested. Accordingly, we hold that the evidence is

factually and legally sufficient to support the jury’s damages award.

      We overrule Sundance’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Julie Countiss
                                              Justice

Panel consists of Justices Lloyd, Landau, and Countiss.




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