

NO. 12-10-00163-CV
 
IN THE COURT OF APPEALS          
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
JON ERIC JACKS,
INDIVIDUALLY,       §                      APPEAL FROM THE 
AND d/b/a JON ERIC JACKS
DEVELOPMENT,
APPELLANT
                                                                        
V.                                                                    §                      COUNTY
COURT AT LAW #2 
 
 
G. A. BOBO, JR.,
APPELLEE                                                   §                      GREGG
COUNTY, TEXAS



MEMORANDUM
OPINION
            Jon
Eric Jacks, individually and d/b/a Jon Eric Jacks Development, appeals the trial
court’s judgment entered in favor of Appellee G.A. Bobo, Jr.  In four issues,
Jacks challenges the trial court’s awards of attorney’s fees to Bobo.  We affirm
in part, reverse and remand in part, and reverse and render in part.
 
Background
Jacks
purchased lots 5, 6, and 7 in Block 5 of the Green Acres Subdivision in
Longview, Texas.  There, Jacks planned to construct a garden home gated
development comprising eight houses on the three lots facing a private street in
its center that would terminate in a cul-de-sac.
Bobo
owned, and for over fifty years had lived on, lot 10, block 6 of the
subdivision across Oxford Lane from Jacks’s three lots.  In 2007, Bobo filed
suit to compel Jacks’s compliance with the restrictive covenants for the
subdivision.  These restrictive covenants required homes on lots in the
subdivision (1) to front the street upon which each lot faces and (2) to be set
back thirty-five feet from the front property line.  Bobo also requested
damages under Texas Property Code, subsection 202.004(c) for each day’s
violation of the restrictive covenants.
Following
a bench trial, the trial court permanently enjoined Jacks from violating the
restrictive covenants and awarded Bobo $8,200 in damages as well as attorney’s
fees apportioned as follows:  (1) $6,000 through trial and the entry of
judgment, (2) $8,000 in the event of an unsuccessful appeal to the court of
appeals, (3) $1,500 in the event a petition for review was filed with the
Supreme Court of Texas, and (4) $4,000 in the event the petition for review was
granted, for briefing and argument before the Supreme Court of Texas.  Jacks
appealed.
We
affirmed the trial court’s judgment granting a permanent injunction, reversed
the trial court’s judgment awarding Bobo $8,200 in damages under subsection
202.004 of the Texas Property Code, rendered judgment that Bobo take nothing on
that claim, reversed the trial court’s award of attorney’s fees to Bobo, and
remanded the cause to the trial court for reconsideration of the question of
appropriate attorney’s fees.  See Jacks v. Bobo, No. 12‑07‑00420‑CV,
2009 WL 2356277, at *8 (Tex. App.—Tyler 2009, pet. denied) (mem. op.).  Jacks filed
a petition for review with the Texas Supreme Court, which was denied, and
thereafter filed a motion for rehearing, which was also denied.
On
remand, the trial court conducted a hearing to determine the amount of attorney’s
fees to be awarded to Bobo.  At the hearing, only Bobo’s attorney, Joe Young,
testified.  Young testified that only one and three-quarter hours of his time
had been devoted to recovery of damages under subsection 202.004 of the
property code during the trial of the case.  Young further testified that he
spent “maybe an hour” on the issue during the appeal.  Young also requested
additional attorney’s fees for the three hours spent preparing for the hearing
and the two hours he estimated it would take to prepare an amended judgment. 
Finally, Young made an estimate concerning the amount of time that he would spend
if Jacks pursued a motion for new trial, pursued an appeal, and filed a
petition for review with the Texas Supreme Court.  Jacks conducted a very brief
cross-examination and asked Young if his invoices specified the amount of time he
spent on each subject.  Young testified that no such invoices existed, but
stated that he was asking the trial court to “go by [his] word” regarding his
time calculations.  Thereafter, the trial court took judicial notice of all
prior proceedings.
Ultimately,
the trial court reduced its original award of attorney’s fees to Bobo for trial
preparations by $306.25 (the equivalent of one and three-quarter hours of time)
to $5,693.75.  The trial court also reduced the attorney’s fees awarded for the
initial appeal by $175 (the equivalent of one hour of time) to $7,825.  Moreover,
the trial court awarded Bobo $600 in attorney’s fees for his time spent
preparing and trying the attorney’s fees issue as well as $400 for his time
spent preparing and seeking entry of the amended judgment.  The trial court
also awarded Bobo $800 in attorney’s fees in the event that Jacks filed a
motion for new trial that was overruled by the trial court, $6,000 in the event
that Jacks pursued an unsuccessful appeal to this court, $1,200 in the event
that Jacks filed an unsuccessful petition for review to the supreme court, and
$4,000 in the event that review was granted by the supreme court, but Jacks’s
appeal was unsuccessful.  This appeal followed.
 
Standard of Review
We
review a trial court’s decision to either grant or deny attorney’s fees under
an abuse of discretion standard.  See Ridge Oil Co., Inc. v. Guinn Invs.,
Inc., 148 S.W.3d 143, 163 (Tex. 2004).  In contrast, we review a trial
court’s determination regarding the amount of attorney’s fees for legal and
factual sufficiency of the evidence.  See Bocquet v. Herring, 972
S.W.2d 19, 21 (Tex. 1998).  Similarly, we review for legal and factual sufficiency
a fact finder’s determination regarding the segregation of attorney’s fees.  See
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006).
 When determining whether an award for attorney’s fees is excessive, we may
“look at the entire record and view the matter in light of the testimony, the
amount in controversy, the nature of the case, and the court’s own common
knowledge and experience[.]”  McFadden v. Bresler Malls, Inc.,
548 S.W.2d 789, 790 (Tex. App.–Austin 1977, no writ).  
In
a nonjury trial, when, as here, a trial court makes no separate findings of
fact or conclusions of law, we must assume that the trial court made all
findings in support of its judgment.  Pharo v. Chambers Co., 922
S.W.2d 945, 948 (Tex. 1996).  The trial court's judgment must be affirmed if it
can be upheld on any legal theory that finds support in the evidence.  In
re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984).  Further, when, as here,
the appellate record includes the reporter’s record, the trial court’s implied
fact findings are not conclusive and may be challenged for legal and factual
sufficiency of the evidence supporting them.  BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
A
trial court's implied findings of fact are reviewable for legal and factual
sufficiency of the evidence by the same standards that are applied in reviewing
evidence supporting a jury's verdict.  See Catalina v. Blasdel,
881 S.W.2d 295, 297 (Tex. 1994).  When reviewing a finding of fact for legal
sufficiency, we may set aside the finding only if the evidence at trial would
not enable a reasonable and fair minded finder of fact to make the finding
under review.  Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 557
(Tex. App.–Tyler 2007, pet. denied) (citing City of Keller v. Wilson,
168 S.W.3d 802, 827 (Tex. 2005)).  In making this determination, we must credit
favorable evidence if a reasonable finder of fact could, and disregard contrary
evidence unless a reasonable finder of fact could not.  See Hopkins,
238 S.W.3d at 557.  The finder of fact is the sole judge of the credibility of
the witnesses and the weight to be assigned to their testimony.  Hopkins,
238 S.W.3d at 557.  The finder of fact is free to believe one witness and
disbelieve another, and a reviewing court may not impose its own opinions to
the contrary.  See id.  Accordingly, reviewing courts must assume
that the finder of fact decided all credibility questions in favor of the
findings if a reasonable person could do so.  Id.  If a
reasonable finder of fact could have so found, we must assume that the finder
of fact chose what testimony to disregard in a way that was in favor of the
findings.  Id.  A finder of fact “may disregard even
uncontradicted and unimpeached testimony from disinterested witnesses” where
reasonable.  Hopkins, 238 S.W.3d at 557 (quoting City of
Keller, 168 S.W.3d at 819–20).
In
addition, it is within the fact finder’s province to resolve conflicts in the
evidence.  Hopkins, 238 S.W.3d at 557.  Consequently, we must
assume that, where reasonable, the finder of fact resolved all conflicts in the
evidence in a manner consistent with the findings.  Id.  Where a
reasonable finder of fact could resolve conflicting evidence either way, we
must presume the finder of fact did so in favor of the findings.  Id.
 Where conflicting inferences can be drawn from the evidence, it is within the
province of the finder of fact to choose which inference to draw, so long as
more than one inference can reasonably be drawn.  Id.  Therefore,
we must assume the finder of fact made all inferences in favor of the findings
if a reasonable person could do so.  Id.
With
regard to factual sufficiency challenges, where a party who did not have the
burden of proof on an issue asserts that a trial court’s finding of fact is contrary
to the evidence, we must overrule the complaint unless the finding is clearly
wrong and manifestly unjust.  See Santa Fe Petroleum, L.L.C. v. Star
Canyon Corp., 156 S.W.3d 630, 637 (Tex. App.–Tyler 2004, no pet.)
(citing Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965)).  “Reversal
[can] occur because the finding [is] based on weak or insufficient evidence or
because the proponent's proof, although adequate if taken alone, is overwhelmed
by the opponent's contrary proof.”  Santa Fe Petroleum, 156 S.W.3d
at 637.  In conducting our factual sufficiency review, we must consider all of
the evidence that supports and that which is contrary to the finding.  Sosa
v. City of Balch Springs, 772 S.W.2d 71, 72 (Tex. 1989).
When
reviewing factual sufficiency issues arising from a bench trial, we are mindful
that the trial court, as the trier of fact, is the sole judge of the
credibility of the witnesses.  See Hopkins, 238 S.W.3d at
557.  The trial court may take into consideration all of the facts and
surrounding circumstances in connection with the testimony of each witness and
accept or reject all or any part of that testimony.  Hopkins, 238
S.W.3d at 557–58.  Where there is enough evidence before the trial court so
that reasonable minds could differ concerning the meaning of that evidence, or
the inferences and conclusions to be drawn therefrom, we may not substitute our
judgment for that of the trial court.  See Hopkins, 238
S.W.3d at 558.
 
Attorney’s Fees for the Initial Trial
            In
his third issue, Jacks argues that Bobo’s evidence regarding segregation of
recoverable attorney’s fees between the time he spent obtaining the injunction and
the unrecoverable attorney’s fees for the time he spent obtaining damages is
inconsistent and unreliable.  We construe Jacks’s third issue as a challenge to
the legal and factual sufficiency of Bobo’s evidence of segregation of
recoverable attorney’s fees.  See Tex. R. App. P. 38.1(f).  
Applicable
Law
Generally,
a party may not recover attorney’s fees unless such an award is authorized by
statute or contract.  Chapa, 212 S.W.3d at 311.  A party who
brings an action based on breach of a restrictive covenant pertaining to real
property may recover reasonable attorney’s fees.  Tex. Prop. Code Ann. § 5.006(a) (Vernon 2004).  In determining
its award of reasonable attorney’s fees, the trial court considers the time and
labor required, the novelty and difficulty of the questions, the expertise,
reputation, and ability of the attorney, and any other relevant factors.  See
id. § 5.006(b).
Because
trial courts do not have the inherent authority to award attorney’s fees,
claimants must segregate fees between claims for which fees are recoverable and
claims for which they are not.  Chapa, 212 S.W.3d at 311.  If any
attorney’s fees relate solely to a claim for which fees are not recoverable,
the claimant must segregate the recoverable fees from the unrecoverable fees.  See
id. at 313.  A common set of underlying facts is not enough.  Id. 
This intertwined facts exception applies only when discrete legal services
advance both a recoverable claim or claims and an unrecoverable claim or
claims.  Id. at 313–14.  Then, and only then, is it unnecessary
to segregate attorney’s fees.  Id. at 314.
A
failure to segregate attorney’s fees does not mean that the claimant cannot
recover any attorney’s fees.  See id.  To the contrary, the
amount of unsegregated attorney’s fees for the entire case is some evidence of
the amount of segregated attorney’s fees.  See id.  Thus,
if a claimant fails to segregate attorney’s fees, we reverse and remand the
cause for a new trial on attorney’s fees.  See id.
Attorney’s
fees are typically proven by eliciting opinion testimony from lawyers
testifying as expert witnesses.  See 2
William V. Dorsaneo, III, Texas Litigation Guide § 22.41 (2009). 
This opinion testimony may come either from a disinterested attorney or an
attorney whose fees are in question in the case.  See id. 
Generally, the testimony of an interested witness does no more than raise a
fact issue.  See Ragsdale v. Progressive Voters League,
801 S.W.2d 880, 882 (Tex. 1990). 
Application
The
evidence reflects that Bobo’s attorney spent one and three-quarter hours on the
unrecoverable claim under subsection 202.004(c) through trial, and less than
one-half hour on research.  There is a stark contrast between the testimony
Bobo’s attorney gave at the initial trial compared to his testimony on remand. 
At the initial trial, Bobo’s attorney testified that he prepared three pages of
billing records detailing the work he did.  But at the hearing on remand,
Bobo’s attorney testified he had no such invoices.[1]    
While
we are somewhat troubled by Bobo’s evidence, he nonetheless provided clear
testimony that, if believed, supports the trial court’s judgment.  Further,
although Jacks complains that Bobo’s attorney testified that he spent four
hours researching waiver before the initial trial, that time could have been
related to waiver of restrictive covenants, and thus, was recoverable.
We
have reviewed the entirety of the record, including Bobo’s attorney’s testimony
at the initial trial and the testimony proffered on remand.  Having done so, we
have not found any testimony that clearly demonstrates that Bobo’s attorney spent
more time than he claimed on the damages issue.  It is apparent that Jacks does
not find Bobo’s attorney’s testimony to be credible. But the trial court
specifically found that Bobo’s attorney did not mislead the court or commit
perjury.  Jacks had an opportunity to extensively cross-examine Bobo’s
attorney.  But instead, he chose to conduct only a cursory cross-examination.  

We
are mindful that the issue before us is whether a reasonable fact finder could
believe the testimony.  Hopkins, 238 S.W.3d at 557.  We further
note that the trial court is the sole judge of the credibility of the witnesses
and the weight to be assigned to their testimony.  Id.  Here, the
trial court was familiar with the issues in the original trial and was in a
better position than is this court to decide whether it is reasonable that only
one and three-quarter hours of time was spent on unrecoverable claims.  Based
on our review of the record, we are satisfied that there was sufficient
evidence before the trial court to support its award of attorney’s fees for the
initial trial and, thus, we defer to its determinations.  See id.
at 558.  Jacks’s third issue is overruled to the extent that it relates to the
award of attorney’s fees for the initial trial.
 
Attorney’s Fees for the Initial Appeal
In
his first issue, Jacks argues that Bobo cannot recover attorney’s fees for the
initial appeal because the original trial court judgment conditioned payment of
attorney’s fees on an unsuccessful appeal by Jacks and Jacks’s initial appeal
was not unsuccessful.  Additionally, as part of his third issue, Jacks argues
that Bobo’s evidence related to the segregation of attorney’s fees is
inconsistent and unreliable, an issue that we again construe as challenging the
legal and factual sufficiency of Bobo’s evidence of segregation of recoverable attorney’s
fees.  See Tex. R. App. P.
38.1(f).  
Applicable
Law
            A
party should not be penalized for taking a successful appeal.  Schlueter
v. Schlueter, 975 S.W.2d 584, 590 (Tex. 1998).  Thus, the trial court
must make the award of attorney’s fees to an appellee contingent upon the
appellant’s unsuccessful appeal.  Hous. Livestock Show & Rodeo, Inc.
v. Hamrick, 125 S.W.3d 555, 586 (Tex. App.–Austin 2003, no pet.).  An
appellee may not recover attorney’s fees for work performed on any issue of the
appeal where the appellant was successful.  Smith v. Smith, 757
S.W.2d 422, 426 (Tex. App.–Dallas 1988, writ denied).  However, an appellee may
still recover attorney’s fees for work performed on any issue of the appeal
where the appellant was unsuccessful.  Id.  Thus, as with his recoverable
and unrecoverable claims in the trial court, an appellee must segregate his appellate
attorney’s fees when the appellant is partially successful in an appeal.  See
id.
Application
Similar
to his evidence of attorney’s fees at the initial trial, Bobo’s evidence
regarding time spent on the damages issue in his initial appeal is surprising. 
Bobo’s attorney testified that he “spent maybe an hour reviewing what [Jacks]
had pled and briefed . . . [a]nd ultimately determined that [he did not feel]
like we needed to respond to that.”  As a result, Bobo claimed that only an
hour of time should be deducted from the attorney’s fees conditionally awarded
by the trial court for the initial appeal.  
Bobo’s
evidence  fails to account for all time spent on the issue of damages during
the initial appeal. Bobo’s attorney’s testimony establishes that he spent time
addressing the issue of damages in his brief.  That time dedicated to the
damages issue did not bear fruit.  Rather, Jacks was successful on the damages
issue and, as a result, should not be penalized.  See Schlueter,
975 S.W.2d at 590.  The fact that Bobo focused his arguments on waiver rather
than on the merits of the damage issue is of no consequence.  Bobo’s attorney
spent time addressing an issue on which Jacks was successful.  That time could
have been segregated from the recoverable fees, but was not.
Further,
Jacks has noted another portion of Bobo’s attorney’s appellate work that is not
recoverable.  Bobo filed a reply brief in which one of the two pages of
argument was dedicated to the damages issue.  The time spent on this endeavor also
is unrecoverable and must be segregated from the recoverable attorney’s fees.
Accordingly,
we overrule Jacks’s first issue as well as the part of his third issue in which
Jacks seeks to completely disallow Bobo’s recovery of attorney’s fees for the
initial appeal.  We sustain Jacks’s first issue and that portion of Jacks’s
third issue regarding attorney’s fees incurred in the initial appeal to the
extent that Jacks complains there is not sufficient evidence that Bobo properly
segregated recoverable attorney’s fees from unrecoverable attorney’s fees.
 
 
Additional Attorney’s Fees Awarded on Remand
In
his second issue, Jacks argues that the trial court erred by awarding Bobo
additional attorney’s fees on remand that were not included in the trial
court’s judgment for the initial trial.  In his fourth issue, Jacks argues that
he was penalized for taking a successful appeal because, on remand, the trial
court awarded attorney’s fees in excess of the attorney’s fees originally
awarded.  
Applicable
Law
            When
a case is remanded to the trial court, the trial court’s authority is limited
so that no issue can be tried except under the authority of the mandate.  Michna
v. City of Houston, 534 S.W.2d 728, 730 (Tex. Civ. App.–Houston [1st
Dist.] 1976, writ ref’d n.r.e.); see also Kahn v. Seely,
37 S.W.3d 86, 87 (Tex. App.—San Antonio 2000, no pet.) (trial court was to
delete from judgment certain damages and reterminate partnership, not hear new
evidence for determining net amount to be split between partners).  When a
trial court does not comply with a mandate from an appellate court, the trial
court abuses its discretion.  Lee v. Downey, 842 S.W.2d 646, 648
(Tex. 1992) (orig. proceeding).  Further, the general rule is that postjudgment
attorney’s fees may not be determined after appeal on remand to the trial
court.  Varner v. Cardenas, 218 S.W.3d 68, 70 (Tex. 2007).
 
Application
            On
remand, the trial court made several new awards of attorney’s fees that were
not contained in its original judgment.  The trial court awarded Bobo $600 in
attorney’s fees for preparation and trial of the attorney’s fees issue, $400
for preparation and entry of the amended judgment, $800 in attorney’s fees if
Jacks filed a motion for new trial that was overruled by the trial court, and
$6,000 if Jacks pursued an unsuccessful appeal of the trial court’s amended
judgment after remand to this court.
However,
our opinion specifically referenced the trial court’s previous award to Bobo of
$6,000 for attorney’s fees through the initial trial and $8,000 in the event of
an unsuccessful appeal to this court.  Because Jacks was successful in
appealing a portion of the judgment from that initial trial, we remanded the cause
to the trial court for reconsideration of those previously awarded attorney’s
fees.  Likewise, we reversed the trial court’s previous award of attorney’s
fees and remanded the cause for reconsideration of those fees in light of our
opinion.  Nothing in our opinion or our mandate authorized the trial court to
award additional attorney’s fees to Bobo.  Similar to the facts in Kahn,
the trial court should have deleted those portions of the attorney’s fees
previously awarded for work related to an unrecoverable claim, but it should
not have considered evidence related to additional attorney’s fees.  Therefore,
because the trial court exceeded its authority under our mandate, it abused its
discretion.  Jacks’s second and fourth issues are sustained.
 
Disposition
We
have overruled Jacks’s third issue to the extent it relates to attorney’s fees
for the initial trial, as well as Jacks’s first and third issues to the extent
that Jacks seeks to completely disallow Bobo’s recovery of attorney’s fees for
the initial appeal.  We have sustained Jacks’s first issue and part of Jacks’s
third issue regarding attorney’s fees incurred on the initial appeal to the
extent that Jacks complains of Bobo’s failure to properly segregate recoverable
fees from unrecoverable fees.  We have further sustained Jacks’s second and
fourth issues.  
Accordingly,
we reverse the trial court’s award of attorney’s fees to Bobo for
the initial appeal of $7,825, and remand the cause to the trial
court for determination of the attorney’s fees to be awarded to Bobo with
consideration given to the amount of attorney’s fees related to work on any
aspect of the damages issue in the initial appeal.  The trial court is
instructed to reduce the appellate fees award accordingly and not to consider
any increase in the award or any additional award of attorney’s fees to Bobo.
We
also reverse the trial court’s award of attorney’s fees to Bobo
for work performed on remand––$600 for attorney’s fees for preparation and
trial of the attorney’s fees issue, $400 for preparation and entry of the
amended judgment, $800 for attorney’s fees if Jacks filed a motion for new
trial that was overruled by the trial court, and $6,000 if Jacks pursued an
unsuccessful appeal to this court of the trial court’s amended judgment after
remand––and render judgment that Bobo recover no attorney’s fees
for work performed on the initial remand of this cause.
We
affirm the remainder of the trial court’s judgment.  
                                                                   Brian
T. Hoyle
                                                                                             
Justice
Opinion delivered June 30, 2011.
Panel consisted of
Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)




                [1]
During a hearing on Jacks’s Objections to and Motion to Modify and Reform
Judgment and Motion to Impeach Testimony, Bobo’s attorney stated that he
answered the question correctly because he had not billed anybody since the
initial trial.  However, Jacks asked if there were any invoices specifying the
amount of work done on recoverable versus unrecoverable claims.
 


