                                                                                     ACCEPTED
                                                                                04-13-00550-CV
                                                                     FOURTH COURT OF APPEALS
                                                                          SAN ANTONIO, TEXAS
                                                                          3/23/2015 11:48:47 AM
                                                                                  KEITH HOTTLE
                                                                                         CLERK

                          No. 04-13-00550-CV


                      IN THE COURT OF APPEALS
              FOURTH COURT OF APPEALS JUDICIAL DISTRICT
                         SAN ANTONIO, TEXAS


                           RANDY K. SMITH,
                          Appellant/Defendant,
                                    vs.
LAWRENCE REID, ROYCE REID, JENNIFER HEATH, AND THL GP
                        INC.,
                          Appellees/Plaintiffs.
               __________________________________________
       APPELLANT’S REPLY IN SUPPORT OF MOTION FOR
          REHEARING/RECONSIDERATION EN BANC


TO THE HONORABLE COURT:

      Appellant Randy K. Smith presents this short reply to address

two points raised by Appellees’ responsive briefing.

    A. Appellee’s focus on the lack of an objection to fee
       segregation is a nonstarter because the parties voluntarily
       submitted the fees evidence in segregated form.

      Appellees argue Smith waived his challenge to the sufficiency

of the attorney’s fees award by failing to object to fee segregation.1


Appellees also make a half-hearted attempt to argue that Smith waived his
1

attorney’s fees complaint based on inadequate briefing. Resp. at 8. It is
noteworthy that Appellees made this same argument to the Panel in Appellees’
                                     1
The Panel Opinion noted this omission, stating: “Itemized invoices

were     presented    in   support     of   the   entire   amount      awarded

($79,171.30), and Smith lodged no objection to the evidence at trial.

Thus, Smith has waived his segregation complaint on appeal.” Op.

at 20.

       However, this “segregation waiver” is a red herring. Smith does

not complain of a lack of segregation. Indeed, the record shows that

the parties voluntarily segregated their fees, explaining to the trial

court the percentage of time spent on each of the claims. (3RR94)

(Appellees counsel stating, “I have also done a lot of thinking about

how that time [hours of attorney’s fees] was spent,” before breaking

down the total amount of fees requested into percentages based on



original briefing, despite the over 100 pages of briefing provided by Smith to
this Court addressing Smith’s complaints on appeal. Not surprisingly,
Appellees’ waiver arguments went unmentioned by the Panel in the issued
opinion. Smith suspects this omission occurred because the briefing provided
by Smith was clear and thorough, comprising both citation to authority and
the record, including the judgment, the fact findings, the conclusions of law,
and the evidence submitted by the parties. Smith Opening Br. & Reply Br.
Indeed, Smith’s briefing was sufficient enough to warrant a 21-page Opinion
from this Court. This Court should summarily reject Appellees’ waiver
contention because Smith’s briefing resoundingly complies with preservation of
appellate complaint rules and sufficiently raised Smith’s challenge to the
amount of attorney’s fees awarded. See TEX. R. APP. P. 38.1(i) (requiring brief to
contain clear and concise argument for the contentions made with appropriate
citations to authorities); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881
S.W.2d 279, 284 (Tex.1994) (discussing “long-standing rule” that issue may be
waived due to inadequate briefing).
                                        2
the varying causes of action). Thus, there was no need for an

objection to a failure to segregate by either party. Appellees point to

no case law requiring a segregation objection when the evidence is

already submitted in a segregated format.

      The simple fact is that, in this case, the Judgment and the

Findings of Fact say it all. The Judgment demonstrates the trial

court awarded fees under only one cause of action: Chapter 38

(breach of contract). (3CR642) (“Under the discretionary powers of

the Court to award attorney’s fees under Chapter 38, the Plaintiffs

are awarded attorney’s fees . . . “) (emphasis added).

      Although Appellees, on Rehearing, argue that the trial court’s

use of the word “discretionary” may indicate an intent to award fees

for the Declaratory Judgment action (Chapter 37),2 the Findings of

Fact resolve any questions that remain unanswered. Specifically,

the Findings of Fact corroborate Smith’s position that the Judgment

intended to award attorney’s fees based, not on the attorney’s fees,

2
 Even if this Court follows Appellees’ position to its logical conclusion, the
attorney’s fees award must be reduced. Even if Appellees are correct that the
trial court intended to award fees under Chapter 37, which Smith strongly
disagrees with based on the express language in the Findings of Fact tying the
attorney’s fees to the breach of covenant claim, this Court must nonetheless
reduce the fees based on the segregation percentages testified to by Appellees’
trial counsel. (3RR94) (Appellees’ counsel testified that only 30% of the
attorney’s fees were incurred seeking “declarations”).
                                      3
but instead based on the breach of covenant claim. (3CR660) (The

FoF provide: “The agreement between RT Craig and Jay A. Blalock,

dated   July   27,   1937,   is   an       express   covenant   by   Smith’s

predecessors in title Not to Claim Land by Adverse Possession.

Smith, in asserting a claim for adverse possession to land, breached

such express covenant, and in so breaching, Smith is liable for

attorney’s fees and costs under section 38.001 of the Texas Civil

Practice and Remedies Code.”).

     The record tells this Court that only 10% of the attorney’s fees

were accrued on the cause of action elected by the trial court.

Appellees’ attorney testified that 10% of the attorney’s fees were

incurred in relation to Smith’s claim of adverse possession to the

“Bubble.” (3RR94). The remaining 90% of Appellees’ fees were

incurred for unrelated legal issues, some of which were abandoned

before trial (30%), defending against the 2011 County Road

Resolution (30%), and Appellees’ “affirmative claims . . . the request

for the TRO, the request for declarations, the boundary, defending

the easement by estoppel and defending against the legal effect of

the court-related items that were admitted a few minutes ago, the



                                       4
'78 statement and the '98 actions of the commissioners court.”

(30%). (3RR94).

     Significantly, both parties used the same break down of

percentages when segregated what amount of fees were incurred for

each percentage of the case. (3RR98) (“In regard to the allocation of

time spent, I agree that Mr. Davis’ number in regard to the 10

percent is a good number on the amount of time and effort that was

spent on the adverse possession, the adverse possession claims.”).

Thus, arguing there was a “waiver” for failing to object to a lack of

segregation when the parties voluntarily segregated their fees is

perplexing and should be summarily ignored by this Court.

  B. Appellees have never disputed that only 10% of attorney’s
     fees was spent on the breach of covenant claim.

     As detailed above, Appellees affirmatively testified that only

10% of all fees were incurred in prosecuting their breach of

covenant claim. (3RR94). Smith has pointed this fact out over and

over again in the briefing to this Court. Appellees have never

disputed this testimony. Instead, Appellees argue they are “entitled”

to 100% of the fees because they also prevailed on other claims.

     This argument, however, ignores the fact that the trial court


                                  5
only awarded fees based on one claim – the Chapter 38 claim.

(3CR642 (Judgment); 3CR660 (FoF)). The trial court was clear in its

Judgment and its Findings of Fact that the award of attorney’s fees

was tied to the finding of liability against Smith for breach of

covenant. Id. To argue otherwise ignores the plain language of the

Judgment and the Findings of Fact. Id. Here, Appellees testified in

open court, under oath, (3RR90), that only 10% of the fees were

accrued for the breach of covenant claim. (3RR94). They cannot

now just “take back” that sworn testimony.

     Thus, if this Court determines that Appellees’ breach of

covenant claim falls within Chapter 38, then the most attorney’s

fees that Appellees may be awarded based on the evidence

submitted is 10% of the amount sought: $8,761.33. (3RR91-93).

This Court has modified judgments to reflect reduced amounts

before and should consider doing so in this case. See Bill Miller Bar-

B-Q Enterprises, Ltd. v. Gonzales, No. 04-04-00747-CV, 2005 WL

2176079, *3 & n.3 (Tex. App. -- San Antonio 2005, pet. denied)

(unpublished) (holding evidence legally insufficient to support

entirety of award [$50,000], but reducing award to amount

supported by evidence[$24,000]).

                                   6
                           CONCLUSION

     Smith respectfully requests this Court grant this Motion for En

Banc reconsideration, withdraw the Panel Opinion, and issue a new

Opinion either vacating the award of attorney’s fees altogether or, at

a minimum, modifying the award to remove the excess attorney’s

fees from the award to ensure that the amount of attorney’s fees

awarded comports with the evidence submitted at trial.

                                      Respectfully submitted,

                                      KELLER STOLARCZYK PLLC
                                      234 West Bandera Road,
                                      No. 120
                                      Boerne, Texas 78006
                                      Telephone: 830.981.5000
                                      Facsimile: 888.293.8580

                                By: /s/Kimberly S. Keller
                                    Kimberly S. Keller
                                    SBN: 24014182
                                    Email: kim@kellsto.com
                                    Shane J. Stolarczyk
                                    SBN: 24033242
                                    Counsel for Appellant

                    CERTIFICATE OF SERVICE

     I certify that Appellant’s Reply to Motion for En Banc

Reconsideration was served on those listed below on March 23,

2015 via this Court’s e-filing system and email/facsimile:


                                  7
      Joe M. Davis
   THE DAVIS LAW FIRM
     P.O. Box 2349
  Boerne, Texas 78006

   Stephan B. Rogers
 ROGERS & MOORE, PLLC
309 Waters St., Suite 114
   Boerne, TX 78006


                /s/Kimberly S. Keller
                Kimberly S. Keller




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