Opinion issued June 27, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00050-CV
                            ———————————
                  AUSTEX TREE SERVICE, INC., Appellant
                                          V.
                    UNIFIRST HOLDINGS, INC., Appellee


                On Appeal from the County Court at Law No 1
                           Travis County, Texas1
                   Trial Court Case No. C-1-CV-16-009675


                          MEMORANDUM OPINION

       Appellant, Austex Tree Service, Inc. (“Austex”), challenges the trial court’s

judgment, entered after a bench trial, in favor of appellee, UniFirst Holdings, Inc.

1
      Pursuant to its docket equalization authority, the Supreme Court of Texas
      transferred this appeal to this Court. See Misc. Docket No. 18–9010 (Tex. Jan. 12,
      2018); see also TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer of cases).
(“UniFirst”), in UniFirst’s suit on a sworn account against Austex. In four issues,

Austex contends that the trial court erred in awarding UniFirst liquidated damages,

pre-judgment interest, reasonable trial attorney’s fees, and unconditional appellate

attorney’s fees.

      We modify the trial court’s judgment and affirm as modified.

                                     Background

      UniFirst sued Austex on a sworn account. In its amended petition, UniFirst

alleged that it sold Austex “one or more items of goods, wares, merchandise, or

services” under an agreement between the parties.         UniFirst also alleged that

Austex defaulted in making its required payments to UniFirst and brought suit

against Austex for breach of contract, unjust enrichment, and fraud. UniFirst

sought damages of $21,214.39, the principal balance owed on the account. This

amount included liquidated damages of $13,873.83, as provided under the parties’

agreement. Unifirst also requested an award of pre-judgment interest, reasonable

attorney’s fees, costs of court, and post-judgment interest.

      UniFirst originally obtained a default judgment against Austex. But the

parties entered into an agreed order to set aside the default judgment and reinstate

the case after Austex filed a bill of review.




                                           2
      Austex then filed a general denial, asserting various affirmative defenses,

including that the liquidated-damages provision in the parties’ agreement

constituted an unlawful penalty.

      At trial, Michael Ron Ferguson, the general manager for UniFirst in Austin,

Texas, testified that UniFirst provides uniform rental services for its clients and

weekly laundering services for those uniforms.       Ferguson also testified that

UniFirst entered into a customer service agreement to perform uniform rental and

laundering services for Austex.     Their agreement was entered into evidence

without objection and included, among other provisions, a sixty-month term, and

the following liquidated-damages provision:

      If Customer breaches or terminates this Agreement before the
      expiration date for any reason (other than for UniFirst’s failure under
      the performance guarantees described above), Customer will pay
      UniFirst, as liquidated damages and not as a penalty (the parties
      acknowledging that actual damages would be difficult to calculate
      with reasonable certainty) an amount equal to 50 percent of the
      average weekly amounts invoiced in the preceding 26 weeks,
      multiplied by the number of weeks remaining in the current term.
      These damages will be in addition to all other obligations or amounts
      owed by Customer to UniFirst, including the return of Standard
      Merchandise or payment of replacement charges, and the purchase of
      any Non-Standard Merchandise items as set forth herein.

Ferguson testified that UniFirst used this formula to determine that Austex owed it

$13,873.83 in liquidated damages—except that UniFirst only had invoices from

twenty weeks, instead of twenty-six weeks, to use for its average due to Austex’s

premature termination of the parties’ agreement.      Ferguson also testified that
                                         3
UniFirst sought damages for unreturned uniforms in the amount of $4,233.77 and

for “past due receivables” for services rendered that were never paid in the amount

of $3,106.79.

      Regarding the liquidated-damages provision, Ferguson testified that if he

had to calculate UniFirst’s actual damages, the amount would easily be “equal to

or more” than the amount resulting from the liquidated-damages calculation

acknowledged by the parties under the agreement. He explained that an account

becomes more profitable later in its term due to the expenses associated with

starting up a new account, such as buying new uniforms and other start-up

expenses, which are “front-loaded.”

      Regarding UniFirst’s record-keeping of invoiced amounts and uniform

inventory, Ferguson testified that UniFirst keeps accurate records tracking how

many uniforms are retained at any given time by its customers. So, if a client fails

to pay or cancels service, Ferguson would be able to ascertain the amount owed

and the replacement cost for any unreturned uniforms from his records.

      Bill Malone, Jr., UniFirst’s attorney, testified that the following attorney’s

fees in this case were reasonable and necessary: $7,071.46 for work performed

leading up to the trial court’s judgment, an additional $8,000.00 if an appeal was

taken to an intermediary court of appeals, an additional $4,000.00 if there was a

petition for review filed in the Texas Supreme Court, and an additional $4,000.00


                                         4
if a petition for review was granted in the Texas Supreme Court. In support of

these proposed fees, Malone testified that he (1) had been licensed to practice law

in Texas since 1981, primarily practicing in Travis County and surrounding areas;

(2) was familiar with the usual and customary attorney’s fees charged by attorneys

for work of this nature of “collection-type” of litigation; (3) provided the following

legal services: evaluating the claims, drafting the petition, obtaining a default

judgment, pursuing post-default-judgment collection procedures, negotiating

reinstatement of the case after Austex filed a bill of review, obtaining discovery,

preparing for trial, and trial of the case; (4) spent “a minimum of seven hours” on

the case, “not includ[ing] the post-judgment procedures that were taken,” for

litigation, trial preparation, and conducting the trial; and (5) he typically charges

$300.00 hour for his time, although he had a contingency-fee arrangement for

“one-third of what [was] collected” in this case.

      The trial court took the case under advisement and ultimately entered a

judgment in favor of UniFirst on August 31, 2017, as follows:

      The Court, after considering the pleadings, evidence, and argument of
      counsel, finds that Defendant Austex . . . is indebted to [UniFirst] in
      the sum of $21,214.39, plus legal interest of $10,064.34, and that
      [UniFirst] should recover a reasonable attorney’s fee, which the Court
      finds to be $7,071.46.
      ....

      It is further ORDERED that [UniFirst] recover from [Austex]
      $8,000.00 if an appeal to the Court of Appeals is made, $4,000.00 if a

                                          5
      petition for review to the Texas Supreme Court is made, and
      $4,000.00 if a petition for review is granted by the Texas Supreme
      Court.

      Austex filed a motion for new trial, which was denied by operation of law.

                                Standard of Review

      Where findings of fact and conclusions of law are not requested or filed after

a non-jury trial, we imply that the trial court made all findings necessary to support

its judgment. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795

(Tex. 2002). But when the record includes the reporter’s and clerk’s records, these

implied findings are not conclusive and may be challenged for legal and factual

sufficiency. Id.; Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). We

apply the same standard of review as that applied in the review of jury findings.

Robinson, 768 S.W.2d at 281. The judgment must be affirmed if it can be upheld

on any legal theory that finds support in the evidence. See Worford v. Stamper,

801 S.W.2d 108, 109 (Tex. 1990).

      We will sustain a legal sufficiency or “no-evidence” challenge if

the record shows 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 802, 810 (Tex. 2005). In


                                          6
conducting a legal sufficiency review, a “court must consider evidence in the light

most favorable to the verdict[] and indulge every reasonable inference that

would support it.” Id. 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). If the

evidence at trial would enable reasonable and fair-minded people to differ in their

conclusions, then the trier of fact must be allowed to do so. City of Keller, 168

S.W.3d at 822; see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003). “A reviewing court cannot substitute its judgment for that of the trier-of-

fact, so long as the evidence falls within this zone of reasonable disagreement.”

City of Keller, 168 S.W.3d at 822.

      In conducting a factual-sufficiency review, we must consider, weigh, and

examine all of the evidence that supports or contradicts the trier-of-fact’s

determination. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.

1989); London v. London, 192 S.W.3d 6, 14–15 (Tex. App.—Houston [14th Dist.]

2005, pet. denied).      We may set aside the judgment only if the evidence

that supports the finding is so contrary to the overwhelming weight of the evidence

as to be clearly wrong or unjust. Cain v. Bain, 709 S.W.2d 175, 175 (Tex. 1986).

“In a bench trial, the trial court is the sole judge of the credibility of the witnesses,

assigns the weight to be given their testimony, may accept or reject all or any part


                                           7
of their testimony, and resolves any conflicts or inconsistencies in the testimony.”

Rich v. Olah, 274 S.W.3d 878, 884 (Tex. App.—Dallas 2008, no pet.).                An

appellate court “may not pass upon the credibility of the witnesses or substitute

our judgment for that of the trier of fact, even if a different answer could be

reached upon review of the evidence.” Id.

                               Liquidated Damages

      In its first issue, Austex argues that the trial court erred in awarding UniFirst

liquidated damages because “the liquidated[-]damages clause of [the parties’]

Customer Service Agreement” acts as an “unenforceable penalty.”

      Although a court may have to resolve certain factual issues at the outset, the

ultimate issue of enforceability of a liquidated-damages provision is a question of

law for the court to decide. FPL Energy, LLC v. TXU Portfolio Mgmnt. Co., 426

S.W.3d 59, 70 (Tex. 2014). “The basic principle underlying contract damages is

compensation for losses sustained and no more; thus, we will not enforce punitive

contractual damages provisions.” Id. As such, a court must make the following

two “indispensable” findings to enforce a contractual-damages provision: (1) “the

harm caused by the breach is incapable or difficult of estimation” and (2) “the

amount of liquidated damages called for is a reasonable forecast of just

compensation.” Phillips v. Phillips, 820 S.W.2d 785, 788 (Tex. 1991). Both

prongs of this test are evaluated “from the perspective of the parties at the time of


                                          8
contracting.” FLP Energy, 426 S.W.3d at 69–70. The party asserting that a

liquidated-damages provision is unenforceable bears the burden of proof. Triton

88, L.P. v. Star Elec., L.L.C., 411 S.W.3d 42, 62 (Tex. App.—Houston [1st Dist.]

2013, no pet.).

      The liquidated-damages provision in this case provides:

      If Customer breaches or terminates this Agreement before the
      expiration date for any reason (other than for UniFirst’s failure under
      the performance guarantees described above), Customer will pay
      UniFirst, as liquidated damages and not as a penalty (the parties
      acknowledging that actual damages would be difficult to calculate
      with reasonable certainty) an amount equal to 50 percent of the
      average weekly amounts invoiced in the preceding 26 weeks,
      multiplied by the number of weeks remaining in the current term.
      These damages will be in addition to all other obligations or amounts
      owed by Customer to UniFirst, including the return of Standard
      Merchandise or payment of replacement charges, and the purchase of
      any Non-Standard Merchandise items as set forth herein.

      A.     Harm incapable or difficult of estimation

      In a portion of its first issue, Austex asserts that UniFirst’s damages in the

event of a breach “were not incapable or difficult of estimation” since Ferguson,

UniFirst’s general manager, testified at trial that UniFirst would “know exactly

what its actual damages were if one of its clients cancelled or failed to pay under

its services contract.”   This is a mischaracterization of Ferguson’s testimony.

Instead, at trial, Austex asked Ferguson the following question:

      And if you - - if a client were to not pay you or to cancel service,
      would you be able to indicate in your records how much that client
      owes you and how much the replacement cost would be for the

                                         9
      uniforms that they still have in their possession that they have not
      returned?

Ferguson responded, “Yes, sir.” Ferguson’s testimony immediately preceding this

exchange concerned the quality of UniFirst’s record-keeping with respect to

invoiced amounts and uniform inventory. No rational interpretation of Ferguson’s

testimony could lead to the conclusion that Ferguson, or anyone else at UniFirst,

could predict the amounts that would have been invoiced to Austex in the future

had Austex not prematurely terminated its contract with UniFirst. Invoices are

issued weekly, and the amount invoiced varied each week based on the number of

uniforms requiring servicing.

      To the contrary, Ferguson separately explained how he calculated liquidated

damages in the amount of $13,873.83 using the formula provided in the

liquidated-damages provision in the parties’ agreement. When asked what the

actual damages would be in lieu of the liquidated damages provided for in the

agreement and “in the event [he was] obligated to go and try to calculate the actual

damages,” Ferguson explained that UniFirst’s actual damages for the remaining

weeks in the contractual term would be “equal to or more than 50 percent easily

because the loss of revenue for the remainder of the agreement would have been

100 percent, not just 50 percent.” The fifty percent reduction accounts for “certain

costs in servicing the account” such as paying “route salesmen,” washing the

uniforms, and processing the uniforms each week. He further explained that the
                                        10
profit stream on any given account fluctuates over time in that many account

expenses are “front-loaded” due to the purchase of new uniforms and other

expenses necessary to begin servicing an account. As such, UniFirst’s profits tend

to increase further into a contract’s term, which is why Ferguson testified that its

actual damages probably exceed the liquidated damages provided for in the parties’

agreement.

      Austex has not established that the liquidated-damages provision in this case

fails to satisfy the requirement that the damages resulting from a breach, at the time

of contracting, were uncertain and difficult to determine. In this case, to forecast

the actual damages to UniFirst as a result of Austex’s termination of its

sixty-month contract, twenty-months into its term, “would be fraught with

uncertainty.” Murphy v. Cintas Corp., 923 S.W.2d 663, 666 (Tex. App.—Tyler

1996, writ denied). Accordingly, we concluded that there is sufficient evidence in

the record to support an implied finding from the trial court that the harm caused

by the breach, at the time of contracting, was incapable or difficult of estimation.

See BMC Software, 83 S.W.3d at 795 (explaining where no findings of fact or

conclusions of law we imply that trial court made all findings necessary to support

its judgment).

      B.     Amount reasonable forecast of just compensation

      In the remaining portion of its first issue, Austex argues that the


                                         11
liquidated-damages provision is an unenforceable penalty because it “was not a

reasonable forecast of just compensation.”

      When a defendant makes such an assertion, it may be required to prove the

amount of actual damages before a court can classify such a provision as an

unenforceable penalty. See, e.g., FPL Energy, 426 S.W.3d at 70 (citing Phillips,

820 S.W.2d at 788). Here, Austex offered no evidence of, or otherwise attempted

to prove, UniFirst’s actual damages at trial.         Instead, it argues that the

liquidated-damages provision is a penalty because it does not attempt to “forecast

actual damages,” but impermissibly “calls for them to be determined and then

multiplied.” This assertion is contrary to a plain reading of the liquidated-damages

provision at issue in the instant case, which instead averages past invoiced

amounts, reduces that averaged amount by fifty percent, and then multiples that

reduced averaged amount by the number of weeks remaining in the contract’s

term. Cf. Phillips, 820 S.W.2d at 789 (“A contractual provision like the one here

by which one party agrees to pay the other some multiple of actual damages for

breach of the agreement does not meet either part of the legal test for an

enforceable liquidated[-]damages provision” because it does not attempt to

forecast, but multiply actual damages). It does not require “one party [to] agree[]

to pay the other some multiple of actual damages for breach of the agreement,”

which would be an unenforceable penalty on the face of the agreement. See id.


                                        12
      Austex further asserts that the liquidated-damages provision is not a

reasonable forecast of damages because it is “disproportionate to actual damages”

and was awarded in addition to actual damages. Austex is correct in that liquidated

damages cannot be enforced if they are disproportionate to actual damages or

awarded in addition to actual damages. See Garden Ridge, L.P. v. Advance Int’l,

Inc., 403 S.W.3d 432, 438 (Tex. App.—Houston [14th Dist.] 2013, no pet.)

(“[L]iquidated damages must not be disproportionate to actual damages. If the

liquidated damages are shown to be disproportionate to the actual damages then

the liquidated damages can be declared a penalty.”).         But Austex’s argument

incorrectly assumes that UniFirst’s actual damages in this case are limited to

“replacement costs for its unreturned uniforms in the amount of $4,344.77” and

“‘past due receivables’ for services rendered in the amount of $3,106.79, for a total

of $7,340.56.” Austex seems to assert that UniFirst may either receive those or

liquidated damages, but not both.

      Instead, an injured party in a breach-of-contract action may recover damages

for its expectation interests in a contract, i.e., the “benefit of the bargain” had the

contract been performed. See Sacks v. Hall, 481 S.W.3d 238, 246 (Tex. App.—

Houston [1st Dist.] 2015, pet. denied) (“The purpose of the benefit-of-the-bargain

measure of damages is to restore the injured party to the economic position it

would have been in had the contract been fully performed.”); see also Bowen v.


                                          13
Robinson, 227 S.W.3d 86, 96 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)

(“With respect to damages in breach-of-contract cases, the general rule is that the

complaining party is entitled to recover the amount necessary to put him in as good

a position as if the contract had been performed.” (internal quotations omitted)).

Austex terminated the parties’ agreement only twenty months into the sixty-month

term. So, the amounts awarded for past-due receivables and unreturned uniforms,

without also compensating UniFirst for Austex’s failure to perform the remaining

weeks in the term of the agreement, would not restore UniFirst to the same

economic position it would have been in had the contract been fully performed.

See Sacks, 481 S.W.3d at 246. The liquidated-damages provision in this case is a

means for compensating UniFirst for the lost benefit of Austex performing its

obligations during the remaining weeks of the term of the parties’ agreement. Id.

      On appeal, Austex does not assert that it was excused from performance of

its obligations under the agreement. And, as previously mentioned, Austex did not

prove the amount it contends was UniFirst’s actual damages to support its

contention that the liquidated damages are not an approximation of the stipulated

sum. See Phillips, 820 S.W.2d at 788 (explaining one way party can “show that a

liquidated[-]damages provision is unreasonable” is by showing that “the actual

damages incurred were less than the amount contracted for,” which requires that

party “to prove what those actual damages were”). Moreover, Ferguson testified


                                        14
that the liquidated damages were, in all probability, less than UniFirst’s actual

damages resulting from Austex’s breach. And the liquidated-damages provision

specifically provides that “[t]hese damages will be in addition to all other

obligations or amounts owed by Customer to UniFirst, including the return of

Standard Merchandise or payment of replacement charges, and the purchase of any

Non-Standard Merchandise items as set forth herein.”

      For these reasons, we conclude that Austex has failed to prove that the

liquidated-damages provision does not provide a reasonable estimate of the harm

that would be incurred and that there is sufficient evidence in the record to support

an implied finding from the trial court that the liquidated-damages provision in this

case is a “reasonable forecast of just compensation.” Phillips, 820 S.W.2d at 788;

see also BMC Software, 83 S.W.3d at 795 (explaining we imply that trial court

made all findings necessary to support its judgment where no findings of fact or

conclusions of law).

      Because there is sufficient evidence to support implied findings from the

trial court that the liquidated-damages provision addressed damages incapable or

difficult of estimation and that the amount of liquidated damages called for is a

reasonable forecast of just compensation, we hold that the trial court did not err in

awarding UniFirst liquidated damages pursuant to the liquidated-damage provision

in the parties’ agreement. Our holding in this case is consistent with those from


                                         15
other courts which have evaluated similar liquidated-damages provisions. See

Atrium Med. Ctr., LP v. Hous. Red C LLC, 546 S.W.3d 305, 315–316 (Tex.

App.—Houston [14th Dist.] 2017, pet. denied) (upholding liquidated-damages

provision for forty percent of current invoice multiplied by number of weeks

remaining in term); see also Murphy v. Cintas Corp., 923 S.W.2d 663, 666 (Tex.

App.—Tyler 1996, writ denied) (upholding liquidated-damages provision for fifty

percent of weekly fees for remainder of sixty–month term, noting “[t]o forecast the

actual damages to Cintas as a result of Murphy’s termination of the contract sixty

months in advance would be fraught with uncertainty”); Oetting v. Flake Uniform

& Linen Serv., Inc., 553 S.W.2d 793, 797–98 (Tex. Civ. App.—Fort Worth 1977,

no writ) (focusing on anticipated profit margin, court held eighty-five percent

cancellation charge reasonable).

       We overrule Austex’s first issue.

                              Pre-Judgment Interest

       In its second issue, Austex argues that the trial court erred in awarding

UniFirst pre-judgment interest because “it did not request [it] and made no effort to

prove [it] up at trial.”

       “Pre[-]judgment interest is compensation allowed by law as additional

damages for lost use of the money due as damages during the lapse of time

between the accrual of the claim and the date of judgment.” Ventling v. Johnson,


                                           16
466 S.W.3d 143, 153 (Tex. 2015). There are two enabling statutes in the Texas

Finance Code relevant to pre-judgment interest, that are not applicable here. One

applies to claims for wrongful death, personal injury, or property damage. See

TEX. FIN. CODE ANN. § 304.101. And the other applies to condemnation cases.

See id. § 304.201. When no statute governs an award of pre-judgment interest, as

in this case, pre-judgment interest may be awarded under general principles of

equity. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507,

528 (Tex. 1998); Trevino v. City of Pearland, 531 S.W.3d 290, 297 (Tex. App.—

Houston [14th Dist.] 2017, no pet.) (explaining pre-judgment interest in

breach-of-contract case governed by equitable principles because no applicable

statute). When general principles of equity govern an award of pre-judgment

interest, we review the trial court’s decision concerning pre-judgment interest for

an abuse of discretion. Hand & Wrist Ctr. of Houston, P.A. v. Republic Servs.,

Inc., 401 S.W.3d 712, 717 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

      Generally, a plaintiff must plead for pre-judgment interest sought in equity

as an element of damages. DeGroot v. DeGroot, 369 S.W.3d 918, 926 (Tex.

App.—Dallas 2012, no pet.). But entitlement to pre-judgment interest does not

require any specific and independent evidentiary proof at trial, unless there is a fact

issue regarding the date of accrual. See Benavidez v. Isles Constr. Co., 726 S.W.2d

23, 26 (Tex. 1987) (holding trial court erred in denying post-verdict amendment to


                                          17
plead pre-judgment interest because it requires no evidentiary proof at trial and

cannot surprise or prejudice opposing party); I-10 Colony, Inc. v. Chao Kuan Lee,

393 S.W.3d 467, 479 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (“In

Texas, pre[-]judgment interest accrues beginning either on the 180th day after the

defendant received written notice of the claim or on the date the suit was filed,

whichever occurs first.”). And once a trial court determines that a plaintiff is

entitled to pre-judgment interest, it has no discretion in determining the amount of

pre-judgment interest to award, which is dictated by statute.            See Acco

Constructors, Inc. v. Nat’l Steel Prods. Co., 733 S.W.2d 368, 371 (Tex. App.—

Houston [14th Dist.] 1987, no writ.) (explaining trial court errs in awarding

pre-judgment interest at rate that varies from statutory amount).

      Here, UniFirst’s live pleading at the time of trial specifically requested

pre-judgment interest. UniFirst was not required to satisfy any sort of evidentiary

burden at trial to establish its entitlement to receive an award of pre-judgment

interest. See, e.g., Benavidez, 726 S.W.2d at 26 (holding trial court erred in

denying post-verdict amendment to plead pre-judgment interest because it requires

no evidentiary proof at trial and cannot surprise or prejudice opposing party). And

Austex does not provide argument as to how the amount of pre-judgment interest

awarded by the trial court was incorrect. To the extent that its statements that “it

remains a mystery to Appellant as to how this interest was calculated” and that the


                                         18
pre-judgment interest award could have “possibly” accrued on the award of

attorney’s fees, could be construed as a challenge to the trial court’s calculation of

pre-judgment interest, that argument is insufficiently briefed for our consideration.

See TEX. R. APP. P. 38.1(i); Bolling v. Farmers Branch Indep. Sch. Dist., 315

S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.) (explaining were we to

identify possible trial court error, search record for facts favorable to party’s

position, or perform legal research that might support party’s contentions “we

would be abandoning our role as judges and become an advocate for that party”).

      Accordingly, we hold that the trial court did not err in awarding UniFirst

pre-judgment interest.

      We overrule Austex’s second issue.

                                  Attorney’s Fees

      In its third issue, Austex argues that the trial court erred in awarding

UniFirst attorney’s fees because the evidence was insufficient to support the trial

court’s award of attorney’s fees through trial in the amount of $7,071.46. Austex

asserts that the contingency-fee agreement between UniFirst and its attorney “does

not mean that the fee arrangement is in and of itself reasonable for purposes of

shifting the fee to the defendant.”

      We review a trial court’s award of attorney’s fees for an abuse of discretion.

El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012).             Evidentiary


                                         19
sufficiency issues are not independent grounds under this standard but are relevant

factors in assessing whether the trial court abused its discretion. Beaumont Bank,

N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Halsey v. Halter, 486 S.W.3d

184, 187 (Tex. App.—Dallas 2016, no pet.). This hybrid analysis involves a

two-pronged inquiry: (1) whether the trial court had sufficient evidence upon

which to exercise its discretion, and (2) if so, whether the trial court erred in its

application of that discretion. City of Hous. v. Kallinen, 516 S.W.3d 617, 626

(Tex. App.—Houston [1st Dist.] 2017, no pet.).

      An attorney’s fees award must be supported by evidence that the fees are

reasonable and necessary. Dernick Res., Inc. v. Wilstein, 471 S.W.3d 468, 490

(Tex. App.—Houston [1st Dist.] 2007, pet. denied). Whether attorney’s fees are

reasonable is ordinarily a decision left to the fact finder. Smith v. Patrick W.Y.

Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009).              A trial court determines

the reasonableness of an attorney’s fee award by considering the following eight

non-exclusive factors enumerated by the Texas Supreme Court: (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

attorney; (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


                                         20
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 or attorneys 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. Arthur Andersen & Co. v. Perry Equip. Corp., 945

S.W.2d 812 (Tex. 1997); see Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 512–

13 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

      Arthur Anderson also directs that a plaintiff may not shift an “entire

contingent fee to the defendant without consideration of the factors required by the

[Texas] Rules of Professional Conduct.” 945 S.W.2d at 818. Thus, a contingency-

fee agreement should be considered by the fact finder, but the fact finder “must

decide the question of attorney’s fees specifically in light of the work performed in

the very case for which the fee is sought.” Id. at 819. Even so, a trial court is not

required to receive evidence on each Arthur Anderson factor.           See Jarvis v.

Rocanville Corp., 298 S.W.3d 305, 318 (Tex. App.—Dallas 2009, pet. denied).

The trial court can also examine the “entire record and . . . view the matter in light

of the amount in controversy, the nature of the case, and his or her personal

experience as a lawyer or judge.” Cole Chem. & Distrib., Inc. v. Gowing, 228

S.W.3d 684, 689–90 (Tex. App.—Houston [14th Dist.] 2005, no pet.); see also

Jarvis, 289 S.W.3d at 318.


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      In this case, the trial court’s award of attorney’s fees is not supported solely

by evidence of the one-third contingency-fee agreement. In addition to testifying

to the contingency-fee arrangement with UniFirst, Malone testified that he had

been practicing law in and around Travis County, Texas since 1981, that he was

familiar with the usual and customary attorney’s fees charged by attorneys for

work in this collection-type of litigation, and that the amount of $7,071.46 in

attorney’s fees for representation through judgment in this case was reasonable and

customary. See Metroplex Mailing Servs., LLC v. RR Donnelley & Sons Co., 410

S.W.3d 889, 900 (Tex. App.—Dallas 2013, no pet.) (“It has consistently been held

that an attorney’s testimony about his experience, the total amount of fees, and the

reasonableness of the fees charged is sufficient to support an award.”).

      Austex argues that the actual attorney’s fees “proven up” by UniFirst at trial

“amounted to only about $2,100.00.” Austex does not explain how it reached this

amount, but it is presumably based on Malone’s testimony that he “spent a

minimum of seven hours” on the case and typically charges $300.00 per hour when

he is not engaged under a contingency-fee arrangement. But Malone did not

testify that he only spent seven hours on the case. Instead, his testimony was that

these seven hours did not include the default judgment and post-judgment

procedures that were taken before the case was reinstated and proceeded to trial.

He also testified more specifically regarding the type of work that he performed in


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the case by providing the following legal services: evaluating the claims, drafting

the petition, obtaining a default judgment, pursuing post-default-judgment

collection procedures, negotiating reinstatement of the case after Austex filed a bill

of review, obtaining discovery, preparing for trial, and trial of the case.

      Accordingly, we hold that the trial court had enough competent evidence

upon which to exercise its discretion and did not err in awarding UniFirst

attorney’s fees through trial in this case in the amount of $7,071.46.

      We overrule Austex’s third issue.

                            “Punitive Fees” for Appeal

      In its fourth issue, Austex argues that the trial court erred in awarding

UniFirst appellate attorney’s fees because the award was “not conditioned on the

lack of success of [Austex’s] appeal, but [was] rather punitive in nature.” Austex

requests that we modify the trial court’s judgment.          UniFirst agrees that the

judgment contains error in this regard and that it should be reformed to condition

the award of appellate attorney’s fees on an unsuccessful appeal by Austex.

      A trial court may not penalize a party for taking a successful appeal. Keith

v. Keith, 221 S.W.3d 156, 171 (Tex. App.—Houston [1st Dist.] 2006, no pet.);

Sipco Servs. Marine v. Wyatt Field Serv. Co., 857 S.W.2d 602, 607 (Tex. App.—

Houston [1st Dist.] 1993, no writ). As such, an unconditional award of appellate

attorney’s fees is improper, and the trial court must condition any award of


                                           23
appellate attorney’s fees on a party’s unsuccessful appeal.     Ansell Healthcare

Prods., Inc. v. United Med., 355 S.W.3d 736, 745 (Tex. App.—Houston [1st Dist.]

2011, pet. denied); Hoefker v. Elgohary, 248 S.W.3d 326, 322 (Tex. App.—

Houston [1st Dist.] 2007, no pet.).

      The judgment in this case awards UniFirst “$8,000.00 if an appeal to the

Court of Appeals is made, $4,000.00 if a petition for review to the Texas Supreme

Court is made, and $4,000.00 if a petition for review is granted by the Texas

Supreme Court.” It is not conditioned upon a successful appeal and is, therefore,

improper. See, e.g., Keith, 221 S.W.3d at 171. Since an unconditional award of

appellate attorney’s fees does not require reversal, we may modify a trial court’s

judgment to make the award of appellate attorney’s fees contingent upon the

receiving party’s success on appeal. Ansell, 355 S.W.3d at 745; Hoefker, 248

S.W.3d at 322.

      Accordingly, we hold that the trial court erred in awarding UniFirst

unconditional appellate attorney’s fees and we modify the trial court’s judgment as

follows:

            $8,000.00 if an appeal to the Court of Appeals is made unless
      Austex prevails in the court of appeals and petition for review is not
      granted by the Texas Supreme Court or unless Austex prevails in the
      Texas Supreme Court;

           $4,000.00 if a petition for review to the Texas Supreme Court is
      made unless Austex prevails in the Texas Supreme Court;


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           $4,000.00 if a petition for review is granted by the Texas
      Supreme Court unless Austex prevails in the Texas Supreme Court.

(Emphasis added.)

      We sustain Austex’s fourth issue.

                                   Conclusion

      We affirm the judgment of the trial court as modified.




                                               Julie Countiss
                                               Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.




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