                                                                                  ACCEPTED
                                                                              04-14-00758-CV
                                                                  FOURTH COURT OF APPEALS
                                                                       SAN ANTONIO, TEXAS
                                                                         7/8/2015 10:55:18 AM
                                                                               KEITH HOTTLE
                                                                                       CLERK

                     NO. 04-14-00758-CV

              IN THE COURT OF APPEALS          FILED IN
     FOURTH COURT OF APPEALS DISTRICT OF 4th COURT OF APPEALS
                                         TEXAS
                                          SAN ANTONIO, TEXAS
                 SAN ANTONIO, TEXAS
                                                    7/8/2015 10:55:18 AM
                                                      KEITH E. HOTTLE
                                                            Clerk
             JOHN A. LANCE, DEBRA L. LANCE,
             F.D. FRANKS AND HELEN FRANKS
                                     APPELLANTS
                               v.
 JUDITH AND TERRY ROBINSON, GARY AND BRENDA FEST,
        VIRGINIA GRAY, BUTCH TOWNSEND AND
BEXAR-MEDINA-ATASCOSA COUNTIES WATER CONTROL AND
             IMPROVEMENT DISTRICT NO. 1
                                  APPELLEES


      From the 198th District Court ofBandera County, Texas
                 Trial Court No. CV-12-0100209
          Honorable 1Vl. Rex Emerson, Judge Presiding

BRIEF OF APPELLEE BEXAR-IVIEDINA-ATASCOSA COUNTIES
   \VATER CONTROL & IMPROVEMENT DISTRICT No. 1


                             GOSTOMSKI & HECKER, P.C.
                             Edward T




                             BEXAR-MEDINA-ATASCOSA
                             COUNTIES WATER CONTROL
                             IMPROVEMENT DISTRICT   l
                                          TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... i

INDEX OF AUTHORITIES.......... . ..... .                                                  ................................... 11


STATEMENT OF THE CASE ................................................................................ iii

ISSUES PRESENTED ............................................................................................. iii

  1. The trial court did not err by granting summary, declaratory judgment under
  Chapter 37 of the Texas Civil Practice & Remedies Code, and the judgment must
  be aftirrned ............................................................................................................ iii
  2. The trial court did not abuse its discretion by awarding attorney fees to the
  Bexar-1\tledina-Atascosa Counties Water Control & Improvement District No. 1,
  and sufficient evidence supported the amount of the award ................................. iii
STATEMENT OF FACTS ....................................................................................... 1

SUMMARY OF THE ARGUMENT ....................................................................... 5

ARGUMENT ............................................................................................................ 6

  1. The trial court did not err when it granted declaratory judgment concerning
  the Deed Without Warranty ................................................................................... 6
  2. The trial court did not abuse its discretion by awarding attorney fees to the
  Bexar-Medina-Atascosa Counties Water Control & Improvement District No. 1 7
                                          were                                                           ............. 9
     B.                                                                                                              .... 14
                                                                                                                              6
                                          INDEX OF AUTHORITIES


Cases
Amaro v. J!Vilson County, 398 S.W.3d 780 (Tex.App.-San Antonio 2011, no pet) 8,
  14
Arthur Anderson & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (Tex. 1997) .. 9
Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) ...................................................... 9
City ofLaredo v. Buenrostro, 357 S.W.3d 118 (Tex.App.-San Antonio 2011, no
  pet.) ......................................................................................................................... 9
Nobles v. Jvtarcus, 533 S.W.2d 923 (Tex. 1976) ...................................................... 7
Oake v. Collin County, 692 S.W.2d 454 (Tex. 1985) ............................................... 9
R.R. Comm'n ofTex. v. Torch Operating Co., 912 S.W.2d 790 (Tex. 1995) ........... 9
Tony Gullo A1otors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2007) ....................... 13
Wells Fargo Bank, N.A. v. O'Brien, 458 S.W.3d 912 (Tex. 2015) .................... 8, 14
Statutes
Tex. Civ. Prac. & Rem. Code§ 37.004(a) ................................................................ 6
Tex. Civ. Prac. & Rem. Code§ 37.009 .................................................................... 8
Tex. Disc. R. Prof. Conduct 1.04 ............................................................................ 10
Rules
Tex. R. App. P. 38.2(a)(l)(B) ............................................................................................ iii
Tex. R. App. P. 9.4 ............................................................................................................ 18
Tex. R. Civ. P. 37 ............................................................................................................... iii
Tex. R. Civ. P. 39 ............................................................................................................... iii
       R.        . P. 60                                       .....   .......... ..                                            .. m
                          STATEMENT OF THE CASE

      The Appellees are satisfied with the Appellants' statement of the case,

except for its omission of Bexar-Medina-Atascosa Counties Water Control &

Improvement District No. 1's intervention as an indispensable party. Tex. R. App.

P. 38.2(a)(l)(B); see Tex. R. Civ. P. 37, 39(a)(2), 60.

                              ISSUES PRESENTED

      1. The trial court did not err by granting summary, declaratory judgment

under Chapter 37 of the Texas Civil Practice & Remedies Code, and the judgment

must be affirmed.

      2. The trial court did not abuse its discretion by awarding attorney fees to

the Bexar-Medina-Atascosa Counties Water Control & Improvement District No.

1, and sufficient evidence supported the amount of the award.
                           STATEMENT OF FACTS

      F.D. and Helen Franks owned property adjacent to Medina Lake. They sold

the property to John and Debra L. Lance. 1 The Franks also created a Deed Without

Warranty (DWW) to 0.282 acres of property they did not own and conveyed it to

the Lances. The DW\V property extends downslope from the Lance's property

toward the Medina Lake pool. The Lances began to take measures to exclude

other persons from the property described by the DWW.

      There is no record evidence of any chain of title passing the property

described in the DWW to F.D. and Helen Franks. The Franks simply created the

DWW out of thin air, as set forth in greater detail in the Brief filed by Appellees

Judith and Terry Robinson, Gary and Brenda Fest, Virginia Gray and Butch

Townsend (the Robinson Appellees).

      The Bexar-Medina-Atascosa Counties Water Control & Improvement

District No. 1 (BMA) has historically and consistently asserted an ownership

                                                                     Medina




                                                               1


                              are                                   as
may be used by the persons, like the Lances and the Robinson Appellees, who own

lake property above the 1084' elevation.

      The DW\V describes land in which the BNIA asserts an ownership interest

Although the BMA contends it is the fee owner of the property in question, that

matter was not part of the trial court's judgment and is not before this court on

appeal.

      The Robinson Appellees sued the Appellants after the Lances took measures

to exclude them from the DWW property.        After BMA was identified as an

mdispensable party, it mtervened in the lawsuit to seek declaration under Chapter

37 of the Texas Civil practice & Remedies Code. BMA asked the trial court to

declare that the DWW did not convey any legal or equitable rights from the Franks

to the Lances. 2

      The issue of the made-up DWW was raised in a motion for partial summary

judgment filed by the Robinson Appellees against the Appellants before BMA

                          motion                          was




                                                                            (RR

                                                     to
them repetitively and         serial rehearings when they disagreed with the court's

rulings.

       The I 98th Judicial District Court, Bandera County, Texas, eventually heard

the motion for partial summary judgment and granted it on June 11, 2014. The

judgment declared that the DWW

       from the Franks as grantors to the Lances as grantees (recoded in
       Volume 915, Page 86, of the Bandera! County real property
       records)("Deed Without Warranty"), purporting to convey the Franks'
       interest in a described .282-acre parcel of land ("disputed area") to the
       Lances, did not convey any ownership or other interest in the
       described property to the Lances.

(Appx. Tab A) The district court severed the partial summary judgment from the

remaining issues on June 12, 2014. (Appx. Tab D)

       On September 5, 2014, BMA moved for its attorney fees and for entry of

final judgment on the severed claims. (CR 5-11) The court heard BMA's motion

on September 17, 2014.

       The              the         on attorney       established that BMA incuiTed

over                                       In                (RR          1)




                     (RR                                                           or
                         BMA                                                        who are

                  ""'~'"'""   as attorneys, to handle certain tasks          the supervision

of the firm's attorneys. (RR 68-69, 74) These persons' services were billed at a

rate of $75 per hour.          All of the firm's time was billed in tenth-of-an-hour

increments, and all of the firm's activities were itemized and described in detail in

the billing records introduced in evidence at the attorney fee hearing. (RR 72, Exh.

I-1)

       The uncontroverted testimony before the court conclusively established that

BMA's counsel economized legal services as much as possible.                  BMA's legal

expenses were minimized by assigning certain tasks to law clerks and paralegals at

a lower hourly rate than those services would have been charged to BMA had the

firm's attorneys done them. (RR 65-66, 68-69, 72-73) Similarly, the Robinson

Appellees had already filed a motion for partial summary judgment on the

declaratory       before           court, so BMA's counsel chose not to amplify legal

                                     a                                same         (RR
BMA's declaratory judgment claim, Bl\1A's attorney fees totaled      1,025.00. (RR

78)

       The district court entered final judgment on the severed claims. (Appx. Tab

E) It awarded BMA $31,025.00 in attorney fees, plus attorney fees in the amount

of $10,000.00 should BMA prevail on appeal, and an additional $5,000.00 should

the Texas Supreme Court request a response from BMA concerning any petition

for review Appellants might file in that forum. (!d.)     Appellants noticed this

appeal.

                      SUMMARY OF THE ARGUMENT

       The trial court's declaratory judgment should be affirmed. The trial court

correctly declared that Appellants' Deed Without Warranty conveyed no

ownership in real property from the Franks to the Lances. The deed purported to

describe and convey, without warranty, property in which BMA claimed an

interest. There was nothing, other than the conjured deed, in the Appellants' title

                                                                             BMA




  it
demanded substantial attorney time and labor. Counsel, a seasoned litigator who

has represented the BMA for a decade-and-a-half, actively participated in the case

and billed his time at a rate at or below the reasonable rate for similar services in

the trial court venue. Counsel's time expenditures were conservative rather than

exaggerated, and he employed cost-saving measures, such as tasking supervised

non-lawyers for certain activities.    BMA only sought fees for services that

advanced its declaratory claims, and the resulting judgment favored BMA.

      The trial court did not abuse its discretion by determining that BMA' s fees

were equitable and just and deciding to award them against Appellants.          Fee-

shifting was justified by the positions taken by and conduct of the Appellants

during the litigation. But most importantly, the attorney fee award was equitable

and just because the entire case was made necessary by Appellants' questionable

decision to prepare and transfer a deed to property they did not own, and then dig

in and fight.

                                  ARGUMENT

1.    The trial court did not err when it granted declaratory judgment
      concerning the Deed \Vithout \Varranty



                                            under a deed or
37.004(a). Bl\1A had in interest in the D\VW because the fabricated document

conflicted with BMA's ownership claims to the property. Most of Appellants'

brief concerns whether the BMA or any of the other Appellees has title to the

property in question. 3 But the trial court's judgment did not determine or declare

who has title to the property. The Appellees did not seek that relief. Instead, the

trial court judgment declared that the DWW conveyed no ownership in real

property from the Franks to the Lances. For the reasons set forth in the Robinson

Appellees' brief on the merits, which BMA adopts and incorporates, the

declaratory judgment concerning the DWW should be affirmed.

2.    The trial court did not abuse its discretion by awarding attorney fees to
      the Bexar-Medina-Atascosa Counties Water Control & Improvement
      District No. 1

      The Appellants argue that unnecessary fees can never be reasonable, and the

only fees necessary to the trial court's judgment involved drafting the motion for

summary judgment and preparing for a temporary injunction hearing early in the
case. They argue that the case was simple and should not have required as much

effort as BNIA's counsel expended.        They argue that BN1A freely chose to

participate in the litigation; since Appellants did not bring BMA into the case, they

don't think they should be responsible for BMA's legal fees.     And they argue the

attorney fee award to BMA is unjust and inequitable because BMA did not draft

the motion for summary judgment and has not yet secured any relief. None of the

Appellants' arguments has merit.

      In a declaratory judgment action, the trial court, in its discretion, "may

award costs and reasonable and necessary attorney's fees as are equitable and just."

Tex. Civ. Prac. & Rem. Code § 37.009. The trial court's discretion extends so far

as to support an award of attorney fees to a non-prevailing party, if the award is

equitable and just. Wells Fargo Bank, NA. v. O'Brien, 458 S.W.3d 912, 916 (Tex.

2015); Amaro v. Wilson County, 398 S.W.3d 780, 789 (Tex.App.-San Antonio

2011 no pet).

                                                  Declaratory Judgments        IS


                                   s                     rna



                                                                                    s
action must be affirmed absent a clear showing that the             court abused its

discretion. Bocquet v. Herring, 972 S.\V.2d 19, 21 (Tex. 1998); Oake v. Collin

County, 692 S.W.2d 454, 455 (Tex. 1985). Whether fees are equitable and just are

matters of law and reviewed de novo. Bocquet, 972 S. W.2d at 21.

      A. BMA 's attorney fees were reasonable and necessary

      Attorney fees awarded under the Declaratory Judgments Act must be

reasonable and necessary, a fact question. Bocquet, 972 S.W.2d at 21. Under the

substantial evidence standard of review, an attorney fee award will not be disturbed

if "more than a mere scintilla" of evidence supports the reasonableness of the

award. R.R. Comm'n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792-93

(Tex. 1995); City of Laredo v. Buenrostro, 357 S.W.3d 118, 122 (Tex.App.-San

Antonio 2011, no pet.) (Discussing substantial evidence review). Without more

than a scintilla of evidence of the reasonableness and necessity of the attorney fees,

a court abuses its discretion if it awards them. See Bocquet, 972 S.W.2d at 21.

      BMA's                   were reasonable and necessary.      Reasonableness is

                                                          m




                                                              mclude:
      ( l) the time and labor required, the novelty artd difficulty of the questions
      involved, and the skill required to perform the legal service properly;
      (2) the likelihood ... that the acceptance of the particular employment will
      preclude other employment by the lawyer;
      (3) the fee customarily charged in the locality for similar legal services;
      (4) the amount involved and the results obtained;
      (5) the time limitations imposed by the client or by the circumstances;
      (6) the nature and length of the professional relationship with the client;
      (7) the experience, reputation, and ability of the lawyer or lawyers
      performing the services; and
      (8) whether the fee is fixed or contingent on results obtained or uncertainty
      of collection before the legal services have been rendered.

Arthur Anderson, 945 S.W.2d at 817, citing Tex. Disc. R. Prof. Conduct 1.04.

      The roots of this cause may have been uncomplicated [RR 100-1 03 ], but it

did not remain simple. The issues multiplied in intensity and complexity, and

additional parties appeared and amplified the proceedings.          The litigation

demanded a substantial amount of attorney attention, time and labor. (RR 100-103,

122-23). Even Appellants' counsel testified at the attorney fee hearing that the

case involved difficult issues and unforeseen complexities, and that it takes time

   lawyers                                              Her testimony that her own

                  were              BMA'                   SIZe




                                                     once. The

                                                              on
the attorney fee hearing   ~    including Appellants' counsel      agreed that it is

appropriate for an attorney to bill for the time it takes to prepare for hearings,

including reading motions and reviewing the authorities cited in the motions and

briefing, and understanding how the authorities apply to the facts in issue. (RR 74,

116, 124-25) The case went to mediation      twice    each time requiring counsel to

devote time to preparation and attendance.

      The testimony and evidence at the attorney fee hearing left little doubt that

the Appellants' litigation tactics influenced the amount of BMA's attorney fees.

Those tactics mcluded

      the excessive briefing and rehearings that the [Appellants] engaged in
      this case. And if you look through the billing, you will see that there
      will be, you know, a 30, 40-page brief cited by opposing counsel.
      They will cite 40 or 50 cases in it. My law clerk has to pull all those
      cases, Shepardize the cases, make sure they're good law. There' is
      time billed for that. And I have to review the cases to see what is
      being argued here and what is the relevance to the case. . . . Three
      months later when we have a rehearing on that, we have to do it all
      over agam. It doesn't take quite as long, but I still have to review
      things.

(RR                        l1                                should       cause




                   s counsel was               m                m which the

                                              11 0)
that BMA's counsel devoted well over 200      hours~   more than a solid month of 40-

hour work weeks   ~   of billable time to the declaratory 1ssue alone. (RR 66,   Exh

I-1) The testimony heard by the trial court was sufficient evidence that BMA's

counsel likely missed other professional opportunities because of the amount of

time it took to prosecute BMA's interests in this cause.

      It is true that BMA's counsel did not draft the motion for summary
                                 5
judgment, as Appellants argue. Appellants' argument seems to suggest that BMA

should have drafted a separate motion for summary judgment and would have been

justified in recovering attorney fees for doing so. They may be right, but it is clear

that BMA's decision not to duplicate efforts by researching and drafting a separate,

redundant motion benefitted the Appellants by reducing the attorney fees awarded

against them. 6

      BMA's choice not to pursue a litigation strategy that would have resulted in

a larger attorney fee award against the Appellants does not support the denial of

      BMA's                 not bill    drafting
fees to BMA altogether, as the Appellants argue. And regardless who drafted the

motion for partial summary judgment, BMA's counsel was responsible for reading

the motion, responses, replies, supplements, and briefs. BMA's counsel had to

read, apply and/or distinguish the authorities cited in those instruments, prepare for

the hearing, argue at the hearing   and argue it all over again when the Appellants

moved for rehearing or demanded a new trial. (RR 85, 88-89, Appx. Tab F) Since

BMA's counsel did not draft Appellants' response and briefing in opposition to the

motion for partial summary judgment either, should fees for reading and analyzing

those instruments be excluded, too? If BMA had sought or recovered attorney fees

for drafting a motion it did not write, authorship might matter. But the trial court

awarded fees for what was done, not what wasn't done.

      Appellants argue that attorney fees should only be awarded for developing

evidence for the temporary injunction hearing and drat1ing the motion for summary

judgment, since those are the only activities that directly produced the judgment.

                                                                     Is not supported
Tony Gullo A:fotors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2007). The record

shows that Appellants cluttered the path to relief in this case with a lot of obstacles.

They cannot, then, argue that it was unnecessary and unreasonable for BMA to

incur legal costs to overcome them.

      The evidence is sufficient to show that the attorney fees awarded to BMA

were reasonable and necessary under every one of the Rule 1.04/Anderson factors

relevant to this cause.

      B. The attorney fee award to BMA is equitable and just

      Appellants argue that the attorney fees awarded to BMA are unjust and

inequitable. They argue that the Appellants did not sue BMA or cause it to be a

party to the litigation, so they should not be responsible for BMA's fees. Under

that argument, however, a defendant would rarely be subject a fee-shifting

judgment because defendants usually don't invite potential plaintiffs to sue them.

       In a related argument, Appellants also claim that the attorney fee award was

                                                                            in the trial
D\VvV and asked for attorney fees under the Declaratory Judgments Act The case

proceeded to disposition, where the trial court granted judgment awarding the

declaratory relief and attorney fees BMA pleaded tor.       Appellants' 'prevailing

party' argument is not supported by Texas authorities concerning fee awards in

declaratory judgment actions, but even if the law supported Appellants' theory, the

record does not: BMA was a prevailing party.

      Appellants contend that it's just not right to award BMA attorney fees when

BMA did not draft the motion that resulted in the judgment That argument is

addressed above, concerning the reasonableness and necessity of BMA's attorney

fees. But even if Appellants' argument were credible, how would BMA be any

different than a party who wins judgment after trial on the merits     a party who

obtained relief without drafting a motion for summary judgment or anything else

other than perhaps a petition and a jury question?

      On the Issue of equity and justness, Appellants' argument fails to address the

         lll     room:




an
If equity and justice ever warranted an upward adjustment to the lodestar, this is

the case.

      The attorney fee award to BMA was obviously equitable and just; therefore,

the trial court did not abuse its discretion by deciding to award reasonable and

necessary attorney fees to BMA in the amounts set forth in the Amended Award of

Attorney Fees and Final Judgment. (Appx. Tab E)

                                    PRAYER

      BMA prays the judgment of the trial court will be affirmed.

                                      Respectfully submitted,




                                     Edward T. Hecker
                                     GOSTOMSKI & HECKER, P.C.
                                     State Bar No. 00787668
                                     607 Urban Loop
                                     San Antonio, Texas 78204-3117
                                     (21 0) 222-9529

                                     ATTORNEY FOR APPELLEE,
                                     BEXAR-MEDINA-ATASCOSA
                        CERTIFICATE OF SERVICE

     I certify this Brief has been served on the persons below through the court's
mandatory e-filing system and via email on the 8th day of July, 2015.

Cynthia Cox Payne
Texas Bar No. 24001935
1118 Main Street
Bandera, Texas 78003
(830) 796-7030 - Phone
(830) 796-7945 Fax
cpayne@paynelawfinn.net

Dan Pozza
State Bar No. 16224800
239 East Commerce Street
San Antonio, Texas 78205
(21 0) 226-8888 Phone
(210) 224-6373- Fax
danpozza@yahoo.com

Stephan B. Rogers
Ross S. Elliott
Rogers & Moore
309 Water Street, Suite 114
Boerne, Texas 78006
Attorney for Plaintiffs
srogerslaw@gmail.com
              CERTIFICATE OF COJ\tiPLIANCE

By his signature, below, counsel for BMA certifies that this brief:
1)    contains fewer than 4,000 words, excluding parts of the brief
      exempted by Tex. R. App. P. 9.4(i)( 1) , and therefore complies with
      the type-volume limitation ofTex. R. App. P. 9.4(i)(2)(D); and
2)    complies with the typeface requirement of Tex. R. App. P. 9.4(e)
      because it was prepared in a conventional, 14-point font typeface in
      the text and footnotes.




                                    Edward T. Hecker
