                                                                                             ACCEPTED
                                                                                        04-13-00550-CV
                                                                             FOURTH COURT OF APPEALS
                                                                                  SAN ANTONIO, TEXAS
                                                                                   3/30/2015 2:56:34 PM
                                                                                          KEITH HOTTLE
                                                                                                 CLERK

                                                         Stephan B. Rogers
                                                         steve@rogersmoorelaw.com

ROGERS & MOORE, PLLC                                                     FILED IN
                                                                 4th COURT OF APPEALS
Attorneys & Counselors at Law                                     SAN ANTONIO,    TEXAS
                                                         Civil Appellate Law
                                                                 3/30/2015 2:56:34 PM
                                                                    KEITH E. HOTTLE
                                                                          Clerk
March 30, 2015

Keith E. Hottle, Clerk
Fourth Court of Appeals
Cadena-Reeves Justice Center
300 Dolorosa St., Suite 3200
San Antonio, TX 78205

      Re:    Randy K. Smith v. Lawrence Reid, et al., No. 04-13-00550-CV

Dear Mr. Hottle:

Please direct this letter brief to the Court, which is reviewing Appellant Randy
Smith’s Motion for Reconsideration En Banc.

Appellees’ Letter Reply to Appellant’s Reply In Support of
Motion for Rehearing/Reconsideration En Banc

Appellees, the Reids, present this letter brief to the Court, to correct Smith’s
incorrect statements pertaining to the record and relevant law.

Contrary to Smith’s contention, he may only contest the attorney’s fee award’s
legal sufficiency on appeal; all other complaints were waived in the trial court.
Appellee’s Reply at 1-2. As the Panel noted in its opinion, Smith made no
complaint about the amount of the attorney’s fee award established by the
itemized invoices introduced into evidence. Panel Op. at *20. Further, Smith
failed to file a motion for new trial or other post-trial motion complaining about
the attorney’s fee award. See Hall v. Hubco, Inc., 292 S.W.3d 22, 33 (Tex. App.—
Houston [14th Dist.] 2006, pet. denied). The Panel correctly determined that
Smith waived his complaints pertaining to the trial court’s calculation of
attorney’s fees. Panel Op. at *20.


__________________________________________________________________
                   309 Water Street, Suite 114 • Boerne, TX 78006
                    P: 830.816.5487 • F: 866.786.4777 (Toll Free)
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Further, Smith mischaracterizes the trial court’s Conclusions of Law No. 1 & 2
concerning breach of covenant as finding of facts. Appellee’s Reply at 4 (citing 3
CR 660). Smith apparently hopes the Court will read these conclusion of law as a
factual finding that the Reids incurred attorney’s fees solely in connection with
their breach of covenant claim. However, the conclusions of law say no such
thing.1 They do not say that the Reids incurred attorney’s fees only in connection
with their breach of covenant claim. Nor do the conclusions say that breach of
covenant is the only legal theory upon which the attorney’s fees award may be
based. The conclusions cited by Smith simply do not bear the weight of his
arguments.

To the contrary, the trial court’s legal conclusions contain conspicuous signs that
the trial court awarded attorney’s fees based on both § 38.001 and the
“discretionary powers” conferred by the Declaratory Judgments Act to award
attorney’s fees that are deemed “equitable and just.” 3 CR 648 (judgment); 3 CR
663 (conclusion of law 22). Smith suggests that the Panel should ignore these
signs, but they speak too plainly not to be heard.

As the Panel correctly determined, this Court is not constrained to the legal
theory identified by the trial court in its conclusions of law if any pleaded legal
theory supports the judgment. Panel Op. at *19. The actual finding of facts
relating to the attorney’s fee award, findings 39 and 40, have not been challenged
by Smith and are amply supported by the evidence. 3 CR 659-660 (judgment).

Smith’s arguments are intended to distract this Court from his failure to preserve
error at trial and adequately raise a legal sufficiency challenge to the attorney’s
fees award on appeal. Smith repeatedly argues that there was evidence that only
10% of Reid’s attorney’s fees were incurred pursuing the breach of contract claim.
Appellee’s Reply at 6. This was merely some evidence of the appropriate award,
which the trial court obviously disregarded. 3 CR 659 (findings of fact 39 and 40).
Despite extensive briefing, Smith has yet to suggest any valid basis for disturbing
the trial court’s findings that the Reids were entitled to recover $79,171.30 and
$20,000.00 in reasonable and necessary attorney’s fees for trial and appeal, and
that awarding the fees to the Reids was fair and equitable. 3 CR 659-660. These
findings were amply supported by the theories of recovery pleaded by the Reids.

The Panel correctly rejected Smith’s arguments, and the arguments have not
acquired any merit by being repeated to the entire Court. Smith’s motion for
reconsideration en banc should be denied.

1 The trial court framed the statements as legal conclusions; they were not intended to
be construed as factual findings. Unlike a finding of fact, no deference to the fact finder
is afforded to a conclusion of law. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996)
(per curiam); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.
2002).

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                                    Sincerely,

                                 // Stephan B. Rogers
                                    SBN 17186350




                        CERTIFICATE OF SERVICE

I certify that this document was served on the attorney listed below by email on
March 30, 2015:

Kimberly S. Keller
Shane J. Stolarczyk
234 W. Bandera Rd., #120
Boerne, TX 78006
kim@kellsto.com

                                 // Stephan B. Rogers




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