Affirmed in Part and Reversed and Remanded in Part and Opinion filed
August 30, 2018.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00671-CV

             HOWARD F. LEDERER, Appellant/Cross-Appellee
                                         V.

   JAMES C. LEDERER, SUSAN LEDERER RUSSELL, KATHLEEN T.
  LEDERER AND MARJORIE E. LEDERER, Appellees/Cross-Appellants

                    On Appeal from the 270th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2015-29219

                                 OPINION

      In this dispute over the interpretation of a joint ownership agreement
concerning real estate investment property, appellant contends that he is entitled to
additional compensation in the form of a “15% override” for services rendered as
coordinating agent based on the affirmative votes of the owners of a majority
interest. Appellees, a small group of interest owners who voted against the 15%
override, contend that the joint ownership agreement does not provide for the
compensation appellant seeks and that any modification to the agreement must be
approved by unanimous consent. The trial court disposed of the issue on cross-
motions for summary judgment and, after a bench trial on attorney’s fees, rendered
a final judgment in favor of appellees.

      On appeal, appellant contends that the trial court erred in granting appellees’
motion and denying his motion on the 15% override. Appellant also contends that
the trial court erred in requiring him to reimburse attorney’s fees and pay attorney’s
fees to appellees. Appellees have filed a cross-appeal complaining that the trial court
erred in allowing appellant’s expert to testify on attorney’s fees and in failing to
award appellees the full amount of their attorney fees. For the reasons explained
below, we affirm in part and reverse in part and remand.

                    FACTUAL AND PROCEDURAL BACKGROUND

I.    The Facts

      In 1973, David Adickes, Steven Zax, Miles Glaser, Don Yarborough, and Don
Evans entered in a Joint Ownership Agreement (JOA) for the purchase of real estate
investment property in north Harris County (the Property). Adickes and Zax received
undivided interests in the Property of 50% and 20% respectively, and the others
received 10% undivided interests. At some point after that, Glaser and Evans sold
their interests to Adickes.

      Under the JOA, each owner was entitled to receive his proportionate share of
the net income derived from the Property and was obligated to pay his proportionate
share of the liabilities and obligations “arising from or incident to the ownership or
operation of the Property.” To secure each owner’s obligation to perform under the
JOA, the owners agreed to convey record title to the Property to a “Trustee”


                                          2
empowered to, among other things, foreclose on the interest of a defaulting owner.
The JOA also provided for a “Coordinating Agent” to manage the payment of
expenses, liabilities, and obligations relating to the Property on behalf of the owners.
Adickes was named the initial Coordinating Agent, and he also became Trustee of
the Property.

      In 1974, Adickes contributed his 50% ownership interest to the Tri-Bro Joint
Venture in partnership with a company owned by investor A.C. Lederer. That same
year, Zax contributed his 20% interest to the Zax Joint Venture in partnership with
investor Paul A. Lederer. The joint venture agreements acknowledged that the
undivided interests in the contributed property were subject to the JOA. The interests
of all parties to this lawsuit flow from one or both of these joint ventures. The only
remaining property interest not included in either joint venture was Don
Yarborough’s 10% interest.

      George W. Lederer, the father of appellant Howard F. Lederer (Howard), was
named Trustee on behalf of both the Tri-Bro Joint Venture and the Zax Joint
Venture. The joint venture agreements also provided that the property contributed to
them would be deeded to George W. Lederer as Trustee. According to Howard, he
succeeded his father as Trustee and Coordinating Agent.

      Over the years, ownership interests in the Property changed through sale,
assignment, or inheritance. In 2005, Steven Zax filed a lawsuit to clarify his
ownership interest under the JOA. The lawsuit was resolved by a 2006 “Settlement
Agreement and Agreement to Clarify Interests” by and between Zax, a group of heirs
and assigns, and others (Settlement Agreement). In 2006, a similar dispute about
Adickes’s then-existing ownership interests and his interest in the Tri-Bro Joint
Venture was resolved in an “Agreement to Clarify Interests” by and between
Adickes, various successors and assigns of A.C. Lederer’s interest in the Tri-Bro

                                           3
Joint Venture, and others (Agreement to Clarify).

       Both the Settlement Agreement and the Agreement to Clarify recognized
Howard as the successor Trustee under the JOA and directed that title to the subject
property be deeded in Howard’s name as Trustee.1 Both agreements also recited that
Howard, as Trustee, “shall be entitled to receive a fee (which is currently set at $200
per month) for serving as Trustee and Coordinating Agent under the [JOA].”

       In early 2015, Howard sent the interest owners a letter informing them of
upcoming property sales and distributions. In the letter, Howard detailed his efforts
to preserve the ownership interests and provide a profitable return on the original
investment in the Property.2 He also stated that Adickes “thought that I should be
rewarded for shepherding this deal for all.” Specifically, Howard stated that Adickes
approved of Howard’s request for “a fifteen percent overriding share on all 2015,
2016 and future sales.”

       Howard included with the letter a voting form for the interest owners to
approve or disapprove each of four property sales and the 15% override. Unlike the
letter, the voting form was worded to request “a success sharing, revenue override
of fifteen percent (15%) from all future distributions from our joint ownership
venture for Howard Lederer” rather than a percentage of property sales.


       1
         The Settlement Agreement reflects that the parties to that agreement: “agree, affirm and
acknowledge that (a) Howard F. Lederer, Trustee is and shall by these presents be the record owner
of the Property by virtue of his being the successor Trustee under that certain [JOA] originally
executed in 1973 . . . and (b) Howard F. Lederer, Trustee is authorized and directed by the parties
hereto to exercise his powers as Trustee under the [JOA] . . . .” The Agreement to Clarify contains
an identical provision. The Agreement to Clarify also recites that Howard was appointed Trustee
of the Tri-Bro Joint Venture in 1999 under a written instrument filed that same year in the Harris
County Clerk’s office.
       2
         The Lederer Parties dispute Howard’s contention that the Property’s value has increased
due to Howard’s efforts. The Lederer Parties argue that the increase primarily resulted from the
passage of forty years and the Property’s proximity to The Woodlands and a new Exxon campus.

                                                4
        While over eighty-eight percent of the interest owners approved the 15%
override, a group representing eight percent of the interest owners voted against it.
Some of the disapproving interest owners indicated that although they agreed
Howard should be compensated for his efforts, they felt that his request for a 15%
overriding interest was “exorbitant” or “egregious.” Some also argued that the JOA
required all owners to approve the override.

II.     The Lawsuit

        In May 2015, interest owners James C. Lederer, Paul R. Lederer, John L.
Lederer, Susan Lederer Russell, Kathleen T. Lederer, and Marjorie E. Lederer (the
Lederer Parties), all of whom had voted against Howard receiving the 15% override,
filed suit against Howard in a Harris County district court. Invoking the Texas Trust
Code, the Lederer Parties asserted individual and derivative claims on behalf of all
owners for breach of fiduciary duty and breach of contract, removal of Howard as
Trustee, as well as actual and exemplary damages, an accounting, and attorney’s
fees. The Lederer Parties later added a request that the court enjoin Howard from,
among other things, taking the 15% override.

        After an unsuccessful mediation, the Lederer Parties filed two traditional
summary judgment motions, one of which challenged whether Howard was entitled
to the 15% override. Howard responded to both motions with a traditional and no-
evidence motion for summary judgment and request for declaratory judgment on his
entitlement to the 15% override. The trial court denied both parties’ motions in July
2016.

        In early 2017, the Lederer Parties filed a “Motion to Re-Urge the Parties’
Cross-Motions for Summary Judgment on Defendant’s 15% Override.” In their
motion, the Lederer Parties contended that Howard’s entitlement to the 15% override
was the “single controlling legal issue” in the case and that “[t]he determination of
                                         5
this legal issue turns solely on the interpretation of an unambiguous contract.” The
Lederer Parties argued that the JOA: (1) provides for compensation to the
Coordinating Agent in one limited circumstance that does not apply to Howard; (2)
does not otherwise provide for compensation to the Coordinating Agent; and (3)
cannot not be changed “except by written instrument signed by all Owners.”
Therefore, the Lederer Parties asserted, the JOA did not authorize the 15% override
because Howard did not obtain the approval of all the interest owners.

       In response to the Lederer Parties’ motion to re-urge, Howard agreed that his
entitlement to the 15% override was “an over-arching issue” and that the trial court
“need only read the JOA and decide/interpret the rights of the parties.” He also noted
that the issue was the basis for his request for declaratory relief.3 Beyond that,
however, Howard disputed the Lederer Parties’ interpretation of the JOA. Howard
relied on another provision of the JOA authorizing the owners of the majority
interest     in     the     Property       to     decide      “all     matters      relating      to
the . . . management . . . [and] operation of . . . the Property,” which, he asserted,
gave the majority “the power over compensation.” Further, Howard argued, no one
was voting to amend the JOA; they were simply voting to reward him for his
management of the Property, so unanimous consent was not required.

       On March 1, 2017, the trial court granted the Lederer Parties’ motion to re-
urge their traditional motion for summary judgment on Howard’s 15% override and
denied Howard’s motion for summary judgment and declaratory judgment. The trial


       3
          Howard’s argument that that the documents provide for the owners of a majority interest
to approve the 15% override appears in the traditional summary judgment section of Howard’s
motion. Howard also requested a declaratory judgment that “the Venture may pay [Howard] an
amount approved by >88% of the owners for services rendered, notwithstanding his role as
Coordinating Agent or the fact that he holds title to the real estate as Trustee.” In the no-evidence
portion of his motion, Howard asserted that the Lederer Parties had no evidence to support most
of the elements of breach of contract and fiduciary duty.

                                                 6
court further declared that “[Howard] is not entitled to a 15% Override.” The Lederer
Parties then nonsuited their remaining claims, leaving only the issue of attorney’s
fees.

        Howard filed a motion to clarify the declaratory judgment order. After
considering the motion, response, evidence, and arguments of counsel, the trial court
denied Howard’s motion to clarify.

        On May 1, 2017, the issue of attorney’s fees was tried to the court. The
attorneys for each side provided expert testimony. After the Lederer Parties’ attorney
testified and was cross-examined by Howard’s attorney, the Lederer Parties moved
to strike Howard’s attorney from testifying as to Howard’s fees or as a rebuttal
witness, arguing that Texas Rule of Civil Procedure 193.6 precluded his testimony
because Howard had failed to supplement discovery concerning his attorney’s fees.
The trial court denied the motion and allowed Howard’s attorney to testify.

        On May 24, 2017, the trial court signed a final judgment granting the Lederer
Parties’ summary judgment motion, denying Howard’s motion, and declaring that
Howard “is not entitled to a 15% Override.” The trial court further ordered that
Howard, “individually and not from the assets of the entity governed by the [JOA]”
pay reasonable and necessary attorney’s fees and expenses of $107,000.00 through
judgment, plus court costs and post-judgment interest. In addition, Howard was to
“reimburse the entity governed by the [JOA] for all attorney’s fees, costs, and
expenses that he has taken out of the entity governed by the [JOA] in the amount of
$76,474.22, plus any attorney’s fees, costs, and expenses removed since the day of
trial, if any.” Howard filed a motion to modify, vacate, correct, or reform the
judgment, which the trial court denied.




                                          7
                            HOWARD’S ISSUES ON APPEAL

      Howard contends that the trial court erred by (1) finding that Howard was not
entitled to be paid the 15% override; (2) requiring Howard to reimburse the entity
governed by the JOA for his attorney’s fees; and (3) awarding attorney’s fees to the
Lederer Parties when there was no finding of economic damages or a breach of any
duty or contract, and the Lederer Parties had nonsuited or abandoned all affirmative
claims prior to trial and failed to segregate their fees.

I.    The Trial Court’s Finding that Howard was Not Entitled to the 15%
      Override
      In his first issue, Howard contends that the trial court erred in finding that
Howard was not entitled to be paid the 15% override when over 88% of the interest
owners voted to approve the compensation and “the governing document provides
that ‘All matters relating to the sale, encumbrance, lease, management, development,
ownership and operation of or other dealing with the Property shall be decided by
the affirmative vote of the Owners of the majority interest in the property.’” The
Lederer Parties have filed a brief in response to these arguments and, in addition,
assert that Howard has waived his right to appeal the denial of the override.

      We first address the Lederer Parties’ waiver argument. Because we conclude
that Howard did not waive his argument, we will proceed to set out the standard of
review and applicable principles of contract interpretation followed by the
application of the law to the facts.

      A.     No Waiver

      The Lederer Parties contend that Howard waived his right to appeal the denial
of the override based on a proposed final judgment Howard submitted. Howard’s
proposed final judgment recited, among other things, that Howard’s motion for
declaratory relief was denied, the Lederer Parties’ motion for summary judgment
                                            8
was granted, and “Defendant is not entitled to a 15% Override.” The proposed final
judgment was signed by Howard’s attorney as “Approved and Entry Requested.”
The Lederer Parties argue that Howard waived his issue because he “unqualifiedly
requested” the trial court to enter a final judgment denying his entitlement to the
15% override, and the trial court ultimately entered a final judgment “as requested
by Howard.”

      When a litigant moves the trial court to enter a judgment, and the trial court
enters the judgment, the litigant cannot later complain of that judgment. Casu v.
Marathon Ref. Co., 896 S.W.2d 388, 389 (Tex. App.—Houston [1st Dist.] 1995,
writ denied). To preserve the right to complain about a judgment on appeal, a movant
for judgment should state in its motion to enter judgment that it agrees only with the
form of the judgment and note its disagreement with the content and result of the
judgment. Id. at 390 (citing First Nat’l Bank of Beeville v. Fojtik, 775 S.W.2d 632,
633 (Tex. 1989) (per curiam)); see also Smith v. East, 411 S.W.3d 519, 528–29 (Tex.
App.—Austin 2013, pet. denied); Bray v. Tejas Toyota, Inc., 363 S.W.3d 777, 787
(Tex. App.—Austin 2012, no pet.). However, “[w]hen a party merely provides a
draft judgment to conform to what the court has indicated its judgment would be,
there is no waiver of the appeal.” Ameripath, Inc. v. Hebert, 447 S.W.3d 319, 328
(Tex. App.—Dallas 2014, pet. denied); see also Glattley v. Air Starter Components,
Inc., 332 S.W.3d 620, 636–37 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
(holding that appellant did not waive issue when no motion to enter judgment was
filed and proposed judgment was intended to conform to trial court’s announced
judgment, even though proposed judgment failed to note its disagreement as to
contents).

      In this case, Howard did not file a motion for entry of judgment. He submitted
the proposed final judgment in connection with his briefing to the court on the

                                          9
Lederer Parties’ request for attorney’s fees, and merely incorporated the trial court’s
prior ruling that he was not entitled to the 15% override. More importantly, the
proposed final judgment Howard submitted concluded with the following ruling:
“However, based upon the evidence presented at trial, the testimony of the witnesses,
and the briefs of the parties[,] it is ORDERED, ADJUDGED AND DECREED that
Plaintiffs take nothing.” Howard’s proposed judgment indicates his disagreement
with the trial court’s prior ruling, and his attorney’s signature affirms Howard’s
request for entry of a take-nothing judgment against the Lederer Parties. Thus,
contrary to the Lederer Parties’ assertion, Howard did not “unqualifiedly” request
that the trial court enter judgment that Howard is not entitled to the override. Nor
did the trial court enter the take-nothing judgment “as Howard requested.” We hold
that Howard did not waive his appellate issue concerning the 15% override. See Soon
Phat, L.P. v. Alvarado, 396 S.W.3d 78, 95–96 (Tex. App.—Houston [14th Dist.]
2013, pet. denied).

         Having rejected the Lederer Parties’ contention that Howard waived his right
to appeal the denial of the 15% override, we turn to the substance of Howard’s first
issue.

         B.    Standard of Review and Applicable Law

         A trial court’s ruling on a motion for summary judgment is reviewed de novo.
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). To prevail
on a traditional motion for summary judgment, the movant must show that no
genuine issue of material fact exists and that it is entitled to judgment as a matter of
law. Tex. R. Civ. P. 166a(c). In reviewing the grant of a traditional summary
judgment, we consider all the evidence in the light most favorable to the respondent,
indulging all reasonable inferences in favor of the respondent, and determine
whether the movant proved that there were no genuine issues of material fact and

                                          10
that it was entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548–49 (Tex. 1985). When competing summary judgment motions
are filed, “each party bears the burden of establishing that it is entitled to judgment
as a matter of law.” City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356
(Tex. 2000). If “the trial court grants one motion and denies the other, the reviewing
court should determine all questions presented” and “render the judgment that the
trial court should have rendered.” Id.

      Howard and the Lederer Parties rely on different provisions of the JOA to
advance their arguments, but neither contends that the contract is ambiguous. A
contract is not ambiguous merely because the parties disagree about its meaning and
may be ambiguous even though the parties agree it is not. URI, Inc. v. Kleburg Cty.,
543 S.W.3d 755, 763 (Tex. 2018). If a written contract is so worded that it can be
given a definite or certain legal meaning when so considered and as applied to the
matter in dispute, then it is not ambiguous. Id. at 765. A contract is ambiguous only
if it is subject to more than one reasonable interpretation. El Paso Field Servs., L.P.
v. MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex. 2012). Both the presence of
ambiguity and interpretation of an unambiguous contract are questions of law
reviewed de novo using well-settled contract-construction principles. URI, 543
S.W.3d at 763.

      In construing a contract, we must ascertain and give effect to the parties’
intentions as expressed in the writing itself. El Paso Field Servs., 389 S.W.3d at 805.
To determine the parties’ intent, we examine and consider the entire writing to
harmonize and give effect to all the provisions of the contract so that none will be
rendered meaningless. Id.; Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d
194, 214 (Tex. 2011). We begin our analysis with the contract’s express language.
El Paso Field Servs., 389 S.W.3d at 805–06. Id. We give terms their plain and

                                          11
ordinary meaning unless the contract indicates that the parties intended a different
meaning. Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164,
168 (Tex. 2009). No one phrase, sentence, or section of a contract should be isolated
from its setting and considered apart from the other provisions. Forbau v. Aetna Life
Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994). To the extent of any conflict, specific
provisions control over more general ones. NuStar Energy, L.P. v. Diamond
Offshore Co., 402 S.W.3d 461, 466 (Tex. App.—Houston [14th Dist.] 2013, no pet.);
see Forbau, 876 S.W.2d at 133–34.

      C.     Application of Law to Facts

      Bearing in mind the above principles, we set out the provisions of the JOA on
which the parties rely:

      Section 1, Paragraph 5:

             Each of the undersigned parties shall be entitled to receive his
      aforesaid proportionate part of the net income derived from the
      Property and shall be entitled to his proportionate interest in all the
      benefits of ownership of said Property; each of the undersigned parties
      shall also be obligated to pay his proportionate part of the liabilities and
      bear his proportionate part of the obligations arising from or incident to
      ownership or operation of said Property, as more particularly
      hereinafter set forth.
      Section 4:
             (a) All matters relating to the sale . . . encumbrance, lease,
      management, development, ownership and operation of or other
      dealing with the Property shall be decided by the affirmative vote of the
      Owners of the majority interest in the property, evidenced in writing. If
      the Owners of a majority interest should decide to take any action, then
      each other undersigned Owner (i.e., the Owners of the minority interest)
      shall be bound and obligated to execute and deliver such instruments
      and papers as may be necessary or reasonably proper to carry out and
      effectuate the decision of the owners of the majority interest. . . .


                                          12
              (b) David Adickes shall serve as “Coordinating Agent” with
      respect to said Property, and in such capacity shall have the right, on
      behalf of all owners, to incur ordinary and necessary expenses in
      reasonable amounts in connection with the handling and ownership of
      the Property; to make payments of expenses, liabilities and obligations
      relating to the Property (from funds belonging to the owners); [and] to
      give notice to owners when the owners should remit to the Coordinating
      Agent funds to be disbursed for payment of obligations, expenses or
      liabilities relating to the Property. . . .
      Section 10:

             The coordinating agent shall be authorized to list the property
      with a real estate broker, including himself if licensed, on a non-
      exclusive basis. The maximum commission payable under such listings
      shall be five percent (5%).
      Section 11:

            This agreement shall not be changed except by written
      instrument signed by all Owners. This instrument shall be binding upon
      and shall inure to the benefit of the Owners and their respective
      successors and assigns.

                                        ***

            1. Howard’s Arguments

      On appeal, Howard asserts that the parties’ respective interests in the property
made the basis of the suit “derive from a handful of governing documents,” namely,
the JOA, the Tri-Bro and Zax joint venture agreements, the Settlement Agreement,
and the Agreement to Clarify. Based on these documents, Howard argues that he is
entitled to the override, especially when “100% of the ‘Owners’ and over 88% of
the interest holders agreed that [Howard] should be compensated for his work.”

      Turning to the JOA, Howard notes that it creates the separate positions of
Trustee and Coordinating Agent and charges each with “separate and distinct tasks.”
Howard asserts that the Coordinating Agent “is charged with the day to day
                                         13
operations” of the JOA based on Section 4(b) of the JOA. Howard also sets out the
text of Section 4(a) and argues that that this section provides that the “major
decisions” concerning the management and operations of the Property are left to the
interest owners by majority vote, and the minority interest owners are obligated “to
carry out and effectuate the decision of the owners of the majority interest.” Howard
does not discuss the Lederer Parties’ contrary arguments or explain why their
interpretation of the JOA is incorrect.

       Howard next broadly argues that the JOA and the joint venture agreements
are partnerships and, therefore, absent express provisions to the contrary, “the
majority rules in a partnership.” See Tex. Bus. Orgs. Code § 152.209(a) (“A
difference arising in a matter in the ordinary course of the partnership business may
be decided by a majority-in-interest of the partners.”).4 Alternatively, Howard
contends that if the agreements are governed by trust law rather than partnership law,
the Texas Trust Code provides that a trustee is entitled to reasonable compensation
in any manner the beneficiaries choose. See Tex. Prop. Code §§ 114.001(a),
114.061(a).

       But Howard does not direct us to any place in the record where he expressly
presented these arguments to the trial court in response to the Lederer Parties’
summary judgment motion, and we have not located them in either the summary
judgment briefing on the 15% override or Howard’s post-judgment motion.


       4
          According to Howard, the JOA was “created for the purpose of creating a partnership
between the original Owners,” citing Rush v. First National Bank, 160 S.W. 319, 323 (Tex. Civ.
App.—Amarillo 1913) (noting that a partnership can be formed for “the buying of one tract or
more of land at the same time and selling them for a profit”), aff’d, 210 S.W. 521 (Tex. Comm’n
App. 1919, holding approved, judgm’t adopted). Likewise, Howard notes that the Tri-Bro and Zax
joint venture agreements expressly provide that “[t]his agreement and obligation hereunder shall
be interpreted, construed and enforced in accordance with the laws of the State of Texas,
specifically, the Texas Uniform Partnership Act.”

                                              14
Arguments not expressly presented in the summary judgment briefing are waived.
See Tex. R. Civ. P. 166a(c); Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912,
916 (Tex. 2015). Even if the arguments were considered, Howard does not explain
how these general partnership and trust principles inform the court’s interpretation
of the specific language of the JOA or overcome the Lederer Parties’ contract-
interpretation arguments. Parties asserting error on appeal must present some
specific argument and analysis showing that the record and the law supports their
contentions. Pittman v. Campbell, No. 14-14-00445-CV, 2016 WL 3435273, at *7
(Tex. App.—Houston [14th Dist.] June 21, 2016, no pet.) (mem. op.). We conclude
that these arguments are inadequately briefed and thus waived. See id.

             2. The Lederer Parties’ Arguments

      The Lederer Parties maintain, as they did in the trial court, that Section 10 of
the JOA specifies the only compensation available for a Coordinating Agent. Section
10 provides that the Coordinating Agent “shall be authorized to list the property with
a real estate broker, including himself if licensed, on a non-exclusive basis” for a
maximum commission of five percent. It is undisputed that Howard is not a licensed
real estate broker and so is not entitled to any fee under this provision. The thrust of
the Lederer Parties’ argument is that that Howard is not entitled to the 15% override
because no other provision authorizes a fee to be paid to the Coordinating Agent and
Howard did not obtain the approval of all the interest owners to modify the JOA to
provide for additional compensation to the Coordinating Agent as Section 11
requires.

      In response to Howard’s reliance on Section 4(a), the Lederer Parties contend
that Howard’s argument ignores Section 10’s specific provision defining the
Coordinating Agent’s compensation and assert that Howard is merely attempting to
avoid the requirement of a unanimous vote to amend the JOA to pay himself the

                                          15
override. The Lederer Parties argue that Howard’s argument also falls short because
Howard applies his 15% override to the interest owners’ distributions rather than to
property sales. According to the Lederer Parties, applying Howard’s 15% override
to the interest owners’ distributions would mean that the interest owners would not
receive their proportionate ownership interest in the net income and other benefits
of ownership as contemplated in Section 1, and such a change in the owners’
proportionate ownership interest would require the approval of all owners as Section
11 requires. Thus, the Lederer Parties argue, because Howard did not receive the
unanimous approval of all the interest owners, he is not entitled to a 15% override
on the interest owners’ distributions.

             3. Analysis

      The sole provision of the JOA on which Howard relies is Section 4(a), which
permits the owners of a majority interest to decide all matters relating to management
and operation of the Property. Viewed in isolation, Section 4(a) reasonably could be
construed as authorizing a majority to approve the 15% override to the Coordinating
Agent for his specified duties relating to the general “operation and management”
of the venture. However, we cannot view this provision in isolation, but must
consider it context along with the other provisions of the JOA. See Exxon Corp., 348
S.W.3d at 214–15; Forbau, 876 S.W.2d at 134.

      As discussed above, Section 4(a) authorizes a majority to decide “[a]ll matters
relating to the sale . . . , encumbrance, lease, management, development, ownership
and operation of or other dealing with the Property.” In contrast, Section 4(b)
outlines the Coordinating Agent’s duties to incur and pay expenses, liabilities, and
obligations on behalf of the interest owners in connection with “the handling and
ownership of the Property” and to collect funds from the interest owners to cover
such payments. The purpose of dividing Section 4 into subsections (a) and (b)

                                         16
appears to be to distinguish the majority interest owners’ authority to decide
important matters impacting the owners’ investment in the Property from the
Coordinating Agent’s ministerial duties relating to the Property.5

       Much later in the JOA, Section 10 authorizes the Coordinating Agent to
undertake an additional activity—to list all or part of the Property with a licensed
real estate broker. Section 10 also gives the Coordinating Agent an opportunity to
earn a commission (capped at a maximum of 5%) by listing the property himself, if
he is a licensed real estate broker. Section 10 contains the only provision that
specifically permits the Coordinating Agent to receive some form of compensation
for his efforts. Because the owners specified the only method for compensating the
Coordinating Agent in Section 10, we cannot infer that the owners also intended to
permit the majority interest owners to approve additional compensation to the
Coordinating Agent in Section 4(a), particularly when Section 4(a) concerns
decisions relating to “the Property” and nowhere does Section 4 mention
compensation of any kind.

       Had the original owners intended to authorize a majority to compensate the
Coordinating Agent for the duties specified in Section 4(b), they could have done so
in Section 4, but they did not. Because Section 10 is the only provision authorizing
any form of compensation to the Coordinating Agent, we conclude that the original
owners did not intend Section 4(a) to authorize the owners of a majority interest in
the Property to approve additional compensation to the Coordinating Agent. This
construction gives effect to both sections and harmonizes them. See Exxon Corp.,

       5
          By comparison, Section 3 contains eight lengthy sections, not subdivided, addressing the
steps to be taken if an owner defaults on his obligations under the JOA and the Trustee’s duties in
that event. Among other things, Section 3 provides that upon request, the Trustee shall sell all or
part of the defaulting owner’s interest and may take a commission of 5% out of the proceeds of
the sale. In contrast, Section 4(b) describes the Coordinating Agent’s duties but contains no
provision for the Coordinating Agent to receive any type of compensation for his duties.

                                                17
348 S.W.3d at 215.

      Section 11 provides that any changes to the JOA require the unanimous
consent of all interest owners. Howard did not get unanimous consent to amend
either Section 4(a) or Section 10 of the JOA to authorize the interest owners to
compensate him with a 15% override. Therefore, Howard was not entitled to the
15% override.

      Even if the owners of a majority interest could approve some type of
additional compensation for Howard, the compensation Howard requested would
still require unanimous consent. The voting form Howard submitted to the interest
owners requested that they vote to approve or disapprove “a success sharing, revenue
override of fifteen percent (15%) from all future distributions from our joint
ownership venture for Howard Lederer” (emphasis added). As Section 1 provides,
the owners are entitled to receive their “proportionate part of the net income derived
from the Property” and are entitled to “all the benefits of ownership of said
Property.” Howard’s request for a share of all distributions, rather than a percentage
of sales, would mean that the interest owners would receive less than their
proportionate ownership interest in the net income. To change the proportionate
ownership interest would require a change to the JOA, which in turn would require
the unanimous approval of all interest owners as provided in Section 11.

      Additional evidence confirms that Howard sought a percentage of the interest
owners’ total distributions rather than a percentage of sales. A letter from Howard
to James Lederer concerning 2015 distributions showed that Howard calculated the
amount of his override by subtracting his 15% from the combined total of the net
proceeds from two land sales that year plus cash in the bank. If Howard’s 15% were
based on a percentage of sales, the gross sales proceeds would be reduced by that
amount along with other transaction costs (such as real estate commissions and

                                         18
closing costs) to determine the net sales proceeds without regard to the amount of
cash in the bank.6 But Howard added the net sales proceeds to the cash in the bank
to determine the total cash available for distribution, and then subtracted his 15%
from the amount that otherwise would have been available for distribution among
the interest owners. Indeed, Howard acknowledges in his reply brief that the effect
of the vote was that more than 88% of the interest holders “voted to approve a 15%
override to [Howard] of their distributions as compensation.” But Howard did not
obtain unanimous consent to amend the JOA to permit him to obtain a portion of the
interest owners’ entitlement to receive their proportion part of the net income from
the Property as provided in Section 1 of the JOA.

       Consequently, the trial court did not err by granting the Lederer Parties’
summary judgment motion, denying Howard’s summary judgment motion, and
declaring that Howard is not entitled to the 15% override.

              4. Howard’s Additional Arguments

       Additionally, Howard suggests that he is entitled to the override because
100% of the original interest owners voted in favor of it. But nothing in the JOA
gives special preference to the votes of the original owners who signed the JOA in
1973. To the contrary, Section 11 reflects that the original owners intended the JOA
to be equally applicable to later interest owners: “This instrument shall be binding
upon and shall inure to the benefit of the Owners and their respective successors and
assigns” (emphasis added). For the same reason, we reject Howard’s alternative
argument, unsupported by any authorities, that we reform the trial court’s judgment
to prohibit Howard from receiving the 15% override only from those interest owners


       6
          This would also be true whether the 15% override were treated as a commission, a cost,
or an expense—the total net proceeds would be reduced by that amount rather than the total
distributions.

                                              19
who voted against it.

       In his reply brief, Howard asserts for the first time that the Tri-Bro and Zax
joint venture agreements, the Settlement Agreement, and the Agreement to Clarify
reflect a “common understanding as shown through decades of common practice”
among the parties that a majority of the JOA interest holders could grant overrides
and determine the Coordinating Agent’s compensation without unanimous consent.7
Although the various agreements were discussed in both parties’ summary judgment
briefing and the documents were attached as evidence, Howard did not argue in the
trial court that the documents evidenced a common understanding or practice over
decades that raised a fact issue precluding summary judgment for the Lederer
Parties. Indeed, Howard agreed that the JOA was the overarching document and
relied almost exclusively on Section 4(a) to support his position that the owners of a
majority interest could vote to approve the 15% override Howard sought. We do not
consider this argument, not only because it was not made in the trial court, see Wells
Fargo Bank, 458 S.W.3d at 916, but also because it is a new issue raised for the first
time in a reply brief. See DEK-M Nationwide, LTD v. Hill, No. 14-15-01030-CV,
2017 WL 1450016, at *3 n.4 (Tex. App.—Houston [14th Dist.] Apr. 18, 2017, pet.
denied) (mem. op.).

       Lastly, Howard contends in his reply brief that the trial court’s ruling was
improper because it did not include either of the parties’ requested declarations and
“wholly fails to provide certainty to the parties’ future dealings as declaratory relief


       7
         Specifically, Howard asserts that the Tri-Bro and Zax joint venture agreements changed
the owners’ respective percentages of ownership and inserted payment overrides without
unanimous approval; the Settlement Agreement and the Agreement to Clarify contained payout
overrides that were not unanimously approved; and the Settlement Agreement and Agreement to
Clarify also provided for compensation to Howard as Coordinating Agent and Trustee. These
documents merely reflect agreements between the parties to those agreements concerning their
respective interests, but none of them purport to change the JOA in any way.

                                              20
cases require.” Howard also complains that the trial court denied his motion to
clarify. Because Howard raises these new issues for the first time in his reply brief,
we do not consider them. See id.

      In sum, we hold that the trial court did not err by resolving the parties’ cross-
motions for summary judgment in favor of the Lederer Parties and concluding that
Howard is not entitled to a 15% override. We overrule Howard’s first issue.

II.   Requiring Howard to Reimburse the Entity Governed by the JOA for
      Attorney’s Fees
      In his second issue, Howard contends that the trial court erred by requiring
him to reimburse the entity governed by the JOA for $76,474.22 in attorney’s fees,
costs, and expenses. The trial court did not specify the basis for its fee award.
Howard primarily relies on the Trust Code to argue that as Trustee of the JOA, he
cannot be forced to reimburse his attorney’s fees when the trial court made no
finding of damages or breach of any duty. The Lederer Parties respond that the trial
court properly ordered reimbursement under either the Trust Code or the Uniform
Declaratory Judgment Act (the Act). We conclude that the trial court awarded the
Lederer Parties’ attorney’s fees under the Act, and that the Act authorizes the trial
court to require Howard to reimburse his attorney’s fees taken out of the entity
governed by the JOA.

      Under the Act, a person whose rights, status, or other legal relations are
affected by a written contract, or other writings constituting a contract, may have
determined any question of construction or validity arising under the contract and
“obtain a declaration of rights, status, or other legal relations thereunder.” See Tex.
Civ. Prac. & Rem. Code § 37.004(a). A declaration may be either affirmative or
negative in form and effect, and the declaration has the force and effect of a final
judgment or decree. Id. § 37.003(b).

                                          21
       In a declaratory judgment proceeding, the court “may award costs and
reasonable and necessary attorneys’ fees as are equitable and just.” Id. § 37.009;
Wells Fargo Bank, 458 S.W.3d at 919.8 The Act “entrusts attorney fee awards to the
trial court’s sound discretion, subject to the requirements that any fees awarded be
reasonable and necessary, which are matters of fact, and to the additional
requirements that fees be equitable and just, which are matters of law.” Bocquet v.
Herring, 972 S.W.2d 19, 21 (Tex. 1998). These statutory limitations are
complimented by other limiting principles, such as segregation of fees. Wells Fargo
Bank, 458 S.W.3d at 919.

       In response to the Lederer Parties’ suit, Howard filed a counterclaim
requesting declaratory relief and attorney’s fees under the Act. Howard specifically
sought a declaration that he was entitled to the 15% override based on the vote of
over 88% of the interest owners. The Lederer Parties answered as counter-
defendants and requested attorney’s fees incurred in responding to Howard’s
counterclaim for declaratory judgment pursuant the Act. The parties’ pleadings thus
sufficiently characterized their claims relating to the 15% override as being within
the purview of the Act. See Wells Fargo Bank, 458 S.W.3d at 916 (“Because the
Murphys pleaded for declaratory relief and Wells Fargo pleaded for the recovery of
its attorney’s fees for either prosecuting or defending a claim for declaratory relief,
the trial court was authorized to enter a judgment awarding Wells Fargo its attorney’s
fees under the [Act].”). The trial court resolved the discrete legal issue presented in
the parties’ cross-motions for summary judgment and declared that Howard “is not

       8
         Similarly, section 114.064 of the Trust Code provides: “In any proceeding under this code
the court may make such award of costs and reasonable and necessary attorney’s fees as may seem
equitable and just.” Tex. Prop. Code § 114.064; Hachar v. Hachar, 13 S.W.3d 138, 142 (Tex.
App.—San Antonio 2004, no pet.) (describing the attorney’s fees provision of the Trust Code and
section 37.009 of the Act as “virtually identical” and stating that neither makes an award of
attorney’s fees dependent on a finding that a party “substantially prevailed.” Id.

                                               22
entitled to a 15% override.” The court further awarded the Lederer Parties reasonable
and necessary attorney’s fees in an amount that was also “equitable and just,”
consistent with the Act.

       The Lederer Parties argue that Howard personally benefitted by paying his
attorney’s fees from the entity governed by the JOA for a declaration that would
mean more money for him and less for all the interest owners,9 and therefore the trial
court acted within its discretion to conclude that it was not equitable and just to allow
the entity governed by the JOA to bear the cost of Howard’s defense. Howard does
not contend that the Act does not authorize the trial court to order reimbursement or
contend that the reimbursement order is inequitable or unjust.10 Under the
circumstances of this case, we cannot say that the trial court abused its discretion in
requiring Howard to reimburse the entity governing the JOA for his attorney’s fees.
See Tex. Civ. Prac. & Rem. Code § 37.009; Save Our Springs Alliance, Inc. v. Lazy
Nine Mun. Utility Dist., 198 S.W.3d 300, 318–19 (Tex. App.—Texarkana 2006, pet.
denied). We overrule Howard’s second issue.

III.   Award of Attorney’s Fees to the Lederer Parties

       In his third issue, Howard contends that the trial court erred by awarding
attorney’s fees to the Lederer Parties when there was no finding of economic

       9
        At the trial, the Lederer Parties’ attorney testified that their lawsuit saved all the owners
between $1.5 and $2 million.
       10
           In his reply brief, Howard argues that the judgment is vague and unenforceable because
there is no “entity governed by the Joint Ownership Agreement.” We do not consider this argument
because the record does not reflect that Howard raised this complaint in the trial court at a time
when the court could have made any necessary clarification, see Tex. R. App. P. 33.1(a), and
because Howard raises this complaint for the first time in his reply brief. See DEK-M Nationwide,
2017 WL 1450016, at *3 n.4. In any event, we note that the record shows that Howard sought to
modify the trial court’s judgment based on a purported settlement agreement with certain interest
owners, which confirms that Howard was paid $76,474.22 in legal fees from the “Joint Ownership
Account.” Howard does not deny that he took the money from this account or claim that he does
not know where to return it.

                                                 23
damages or a breach of any duty or contract, and the Lederer Parties dismissed or
abandoned all affirmative claims prior to trial. Howard also argues that the Lederer
Parties are not entitled to an award of attorney’s fees because they “failed and
refused” to segregate their fees.

      A.     Basis for Attorney’s Fees Award

      Howard first argues that the only claims the Lederer Parties pleaded that
support an award of attorney’s fees were breach of contract and violations of the
Trust Code, but the Lederer Parties nonsuited or abandoned those claims before trial,
except for their claim for attorney’s fees. Howard also argues that the Lederer Parties
cannot recover attorney’s fees under the Act because they have not filed any
independent affirmative pleading seeking declaratory relief and may not use the Act
“to recover fees that were not otherwise available.” See, e.g., MBM Fin. Corp. v.
Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 (Tex. 2009) (“[T]he rule is
that a party cannot use the Act as a vehicle to obtain otherwise impermissible
attorney’s fees.”).

      Howard’s premise ignores the fact that he is the party who expressly sought
declaratory relief, and in response, the Lederer Parties answered and counterclaimed
for attorney’s fees under the Act for having to respond to Howard’s declaratory
judgment claim. Although the Lederer Parties nonsuited all their remaining claims
before trial, their request in their counterclaim for attorney’s fees under the Act
remained. “[A]ttorney’s fees may be awarded under this Act to a party who
presented no claims, and even where the declaratory judgment sought concerns a
question of law on which no jury finding is necessary.” U.S. Fid. & Guar. Co. v.
Coastal Ref. & Mktg., Inc., 369 S.W.3d 559, 571 (Tex. App.—Houston [14th Dist.]
2012, no pet.); accord Save Our Springs Alliance, 198 S.W.3d at 318 (“Either party
may obtain attorney’s fees [under the Act] regardless of which party is affirmatively

                                          24
seeking relief.”). “One need not even be the prevailing party or seek affirmative
relief to be awarded attorney’s fees under the [Act], as long as the award of fees is
equitable and just.” Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 452 (Tex.
App.—Houston [1st Dist.] 2007, no pet.).

      Given that both parties pleaded for attorney’s fees under the Act and that the
declaratory relief Howard requested was resolved by summary judgment in favor of
the Lederer Parties, the trial court did not abuse its discretion by awarding attorney’s
fees to the Lederer Parties under the Act.

      B.     Segregation of Fees

      Lastly, Howard contends that the trial court erred by awarding the Lederer
Parties attorney’s fees when they failed and refused to segregate their fees. The
Lederer Parties counter that Howard waived any complaint about the failure the
segregate fees. Alternatively, the Lederer Parties argue that attorney’s fees were
recoverable for all their claims (under the Trust Code, the Act, and breach of
contract), but even if some were not, segregation was not required because all the
claims were inextricably intertwined.

             1. No Waiver

      The Lederer Parties first argue that although Howard questioned the Lederer
Parties’ expert about whether he had segregated fees, Howard waived his appellate
complaint because he did not object to the expert’s testimony or the admission of the
firm’s fee statements. Here, however, Howard not only elicited testimony from the
Lederer Parties’ expert that the expert made no effort to segregate fees because “the
work” was “inextricably intertwined,” Howard also mentioned segregation during
closing argument and informed the trial court that he would be submitting a trial
brief on the issue. Prior to the trial court’s rendition of judgment, Howard filed his


                                          25
brief, in which he objected to the Lederer Parties’ failure to segregate their fees.11
The nature of Howard’s cross-examination and his attorney’s comments also reflect
that the trial court understood that Howard was challenging the Lederer Parties’
failure to segregate their fees. On this record, we hold that Howard did not waive the
issue. See Home Comfortable Supplies, Inc. v. Cooper, 544 S.W.2d 899, 909–10
(Tex. App.—Houston [14th Dist.] 2018, no pet.) (holding that fee segregation issue
was not waived when raised before the issue was submitted to the fact finder and the
record showed that trial court was aware of the nature of the complaint).

               2. Segregation of Attorney’s Fees Required

       Attorney’s fees are recoverable only when provided for by statute or the
parties’ contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex.
2006). Generally, “a claimant must segregate legal fees accrued for those claims for
which attorneys fees are recoverable from those that are not.” Kinsel v. Lindsey, 526
S.W.3d 411, 427 (Tex. 2017) (citing Chapa, 212 S.W.3d at 314). “An exception
exists only when the fees are based on claims arising out of the same transaction that
are so intertwined and inseparable as to make segregation impossible.” Id. But,
intertwined facts alone do not make fees for unrecoverable claims recoverable; “it is
only when discrete legal services advance both a recoverable and unrecoverable
claim that they are so intertwined that they need not be segregated.” Chapa, 212
S.W.3d at 313–14. Nor are unrecoverable legal fees rendered recoverable merely
because they are nominal. Id. at 313. The party seeking to recover attorney’s fees
bears the burden of demonstrating segregation is not required. CA Partners v.
Spears, 274 S.W.3d 51, 82 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).

       11
          We note that the trial court requested that the Lederer Parties provide post-trial briefing
on the issue of the court’s authority to direct Howard to return the legal fees he took from the entity
governed by the JOA for his defense shortly before Howard indicated his intention to provide
briefing on the segregation issue. Both parties subsequently submitted briefs prior to judgment.

                                                  26
      Attorneys are not required to keep separate records documenting the exact
amount of time working on one recoverable claim versus an unrecoverable claim.
Alief Indep. Sch. Dist. v. Perry, 440 S.W.3d 228, 246 (Tex. App.—Houston [14th
Dist.] 2013, pet. denied). Segregation is sufficiently established if, for example, an
attorney testifies that a given percentage of the drafting time would have been
necessary even if the claim for which attorney’s fees are unrecoverable had not been
asserted. Id. In Perry, this court held that the evidence supported a conclusion that
the appellee properly and adequately segregated attorney’s fees under the Chapa
standard when he reduced his reasonable and necessary fees by specific percentages
as to parties and claims for which fees were not recoverable and presented evidence
of how he segregated fees by claim and party. See id. at 246–47. Likewise, in State
Farm Lloyds v. Hanson, this court held that the appellee sufficiently segregated
attorney’s fees when the appellee’s attorney testified that discovery for the
appellee’s contract claim equally applied to his bad faith claims, approximately 95%
of the attorney’s work went toward or was intertwined with getting the appellee a
new roof pursuant to the contract and 5% was spent solely on bad faith issues, and
the attorney’s testimony was supported by evidence. See 500 S.W.3d 84, 102–05
(Tex. App.—Houston [14th Dist.] 2016, pet. denied).

      Howard emphasizes that the Lederer Parties nonsuited or abandoned all the
claims on which their suit was based, and therefore it was incumbent on them to
segregate fees expended on claims for which fees may not be recovered and claims
for which they no longer sought affirmative relief. Howard also argues that under
Chapa, the mere existence of common facts and circumstances across the Lederer
Parties’ numerous causes of action is insufficient to support their contention that
segregation was unnecessary because their claims were intertwined.

      At the trial on attorney’s fees, the Lederer Parties’ expert was one of the

                                         27
attorneys of the firm representing the Lederer Parties. The expert testified that the
firm was asking for $300,000.00 (after discounting fees totaling $425,000.00) as
reasonable and necessary fees. The firm’s billing statements also were admitted into
evidence.

      The expert stated that all the Lederer Parties’ claims involved Howard’s
attempt to get a 15% override on every disbursement to the interest owners.
According to the expert, his firm’s efforts eliminated the override and saved the
interest owners between $1.5 million and $2 million in future charges when the trial
court ruled on the partial summary judgment in the Lederer Parties’ favor. As a
result, the expert stated, the Lederer Parties were willing to “pull down” their
remaining claims and try only the attorney’s fees because all of the claims were
geared to “bust[ing]” the 15% override. The expert explained that once they
prevailed on the issue of the 15% override, the Lederer Parties’ trust and contract
claims on that issue were resolved; moreover, Howard’s subsequent removal as
trustee mooted the removal action. Consequently, only two issues remained: whether
Howard breached a duty or the JOA by (1) paying a 6% commission to real estate
brokers (in excess of the 5% commission allowed in Section 10 of the JOA), and (2)
taking a $200.00 per month commission for too many months. The expert testified
that after concluding that the cost of trying those two claims would exceed their
value, it was decided that these claims would be abandoned.

      On the issue of fee segregation, the Lederer Parties’ expert opined that
because all of the claims were directed to defeating Howard’s attempt to take the
15% override, all of the firm’s work was “inextricably intertwined.” During cross-
examination, the expert acknowledged that in addition to the summary judgment on
the override, the Lederer Parties had filed another partial summary judgment on the
excessive-commission issue. The expert disagreed that work on the summary

                                         28
judgment motions could be separated, however, because “everything was so
intertwined.”12 Howard’s attorney then cross-examined the expert on his firm’s
billing for other issues that Howard suggested were unrelated to the summary
judgment on the 15% override. The Lederer Parties’ expert nevertheless maintained
that, other than the two issues that were dropped, everything relating to the 15%
override was intertwined. The expert admitted, however, that he made no attempt to
segregate out any fees for work relating to the 15% override issue.

       Because the Lederer Parties voluntarily dismissed or abandoned all of their
affirmative claims after prevailing on the 15% override, they could only recover
attorney’s fees for their defense of Howard’s declaratory judgment action on the
15% override. See Kinsel, 526 S.W.3d at 427; Chapa, 212 S.W.3d at 313–14; see
also NP Anderson Cotton Exchange, L.P. v. Potter, 230 S.W.3d 457, 467 (Tex.
App.—Fort Worth 2007, no pet.) (“When a party pleads several causes of action
including a request for a declaratory judgment and an award of attorney fees and is
subsequently awarded declaratory relief but denied other relief, the party is entitled
only to those attorney fees attributable to the declaratory judgment action.”); Hill v.
Heritage Res., Inc., 964 S.W.2d 89, 143 (Tex. App.—El Paso 1997, pet. denied)
(holding party who did not recover on breach of contract and real estate fraud claims
was entitled to attorney’s fees only on declaratory judgment action). Consequently,
the Lederer Parties were required to segregate attorney’s fees incurred for legal
services related to recoverable and non-recoverable claims. See Kinsel, 526 S.W.3d
at 427.

       The Lederer Parties’ expert did not offer any testimony that all the legal
services that advanced the unrecoverable claims also advanced the recoverable

       12
            At this point, Howard’s counsel “kind of agree[d] that it was intertwined” but pointed
out that it was the Lederer Parties’ burden to segregate fees.

                                               29
defense of Howard’s declaratory judgment action. See Tijerina v. Wysong, No. 14-
15-00188-CV, 2017 WL 506779, at *9 (Tex. App.—Houston [14th Dist.] Feb. 7,
2017, no pet.) (mem. op.). Nor does the record support the Lederer Parties’ argument
that segregation was not required because all the claims were “inextricably
intertwined.” To the contrary, the Lederer Parties’ expert acknowledged that at least
two of the claims were unrelated to the 15% override issue, and another claim
became moot during the pendency of the case. Although the expert opined that the
unrelated claims were not worth pursuing, unrecoverable fees are not rendered
recoverable simply because they are nominal. Id. (citing Chapa, 212 S.W.3d at 313–
14). We see no reason why the expert could not have opined on the reasonable
percentage of fees attributable solely to the Lederer Parties’ unrecoverable claims,
even if it was a nominal amount. See Chapa, 212 S.W.3d at 313–14; Hanson, 500
S.W.3d at 105; Perry, 440 S.W.3d at 247.

       The trial court did not specify the basis for its award of attorney’s fees to the
Lederer Parties, which was less than the amount requested. Absent testimony
concerning what portion of attorney time was allotted for work incurred in the
successful defense of Howard’s declaratory judgment claim and what portion was
allotted for work incurred solely to advance claims for which attorney’s fees were
unrecoverable, we must remand the case for a new trial on the attorney’s fees issue.
See Kinsel, 526 S.W.3d at 428; Chapa, 212 S.W.3d at 314. We sustain Howard’s
third issue in part.




                                           30
                     THE LEDERER PARTIES’ CROSS-APPEAL

      On cross-appeal, the Lederer Parties contend that the trial court erred in
allowing Howard’s attorney to testify as an expert on attorney’s fees over their
objection and in failing to award the Lederer Parties the full amount of their fees.
We need not reach these issues due to our disposition of Howard’s issues. See Tex.
R. App. P. 47.1.

                                   CONCLUSION

      We reverse the portion of the trial court’s judgment awarding attorney’s fees
to appellees, sever that portion of the judgment, and remand the issue to the trial
court for a new trial on the issue of the Lederer Parties’ attorney’s fees. We do not
reach the Lederer Parties’ cross-appeal. We affirm the remainder of the trial court’s
judgment.




                                       /s/    Ken Wise
                                              Justice



Panel consists of Justices Boyce, Donovan, and Wise.




                                         31
