CONCUR; and Opinion Filed July 23, 2018.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00024-CV

           JAMES D. ANDERTON, INDIVIDUALLY AND AS THE TRUSTEE
           OF THE JIMMIE W. ANDERTON AND FRANCES E. ANDERTON
               REVOCABLE LIVING TRUST AGREEMENT, Appellants
                                    V.
                         JENNIFER GREEN, Appellee

                           On Appeal from the 354th District Court
                                    Hunt County, Texas
                                Trial Court Cause No. 79011

                                 CONCURRING OPINION
             Before Chief Justice Wright, Justice Lang-Miers, and Justice Whitehill
                           Concurring Opinion by Justice Whitehill
       I agree with and join in the court’s opinion as correctly decided based on the issues raised

and the record before us. I write separately to address only the preservation issue discussed in

footnote four of that opinion.

       In my view, appellants’ complaint about whether Jennifer failed to segregate her

recoverable attorneys’ fees is substantively a complaint about the sufficiency of the evidence to

support the amount awarded. See Tony Gullo Motors I, L.P. v. Chapa, 22 S.W.3d 299, 314 (Tex.

2006) (“Unsegregated attorney’s fees for the entire case are some evidence of what the segregated

amount should be.”) (footnote omitted). As such, that issue could have been raised for the first

time on appeal from this nonjury case. TEX. R. APP. P. 33.1(d).
       Therefore, future appellate courts should not need to address the error preservation issues

footnote four discusses when resolving whether an attorneys’ fees claimant properly segregated

recoverable attorneys’ fees from non-recoverable attorneys’ fees when a trial court tries that issue.




                                                   /Bill Whitehill/
                                                   BILL WHITEHILL
                                                   JUSTICE



170024CF.P05




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