SHAMOUN & NORMAN LLP vs. ALBERT G HILL, Jr., et al, DC-10-14714, RESPONSE 1-Defs_Response_to_Partial_MSJ_on_38001_Attorney_Fees (Tex. St., Dallas Co., 160th District Ct. May. 3, 2019) (2024)

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`TABLE OF CONTENTS
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`Page
`SUMMARY OF THE ARGUMENT ............................................................................................ 1
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`SUMMARY JUDGMENT EVIDENCE ....................................................................................... 2
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`BACKGROUND ........................................................................................................................... 3
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`LEGAL STANDARDS ................................................................................................................. 4
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`ARGUMENT ................................................................................................................................ 6
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`I.
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`II.
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`III.
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`IV.
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`V.
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`VI.
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`The Reasonableness of Fees Is a Fact Issue and S&N Cannot Conclusively
`Prove that $1.8M Is Reasonable ............................................................................. 6
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`Because the Hill Estate Is Neither a “Corporation” Nor an “Individual”—
`i.e., a Human Being—S&N Cannot Recover Attorneys’ Fees Under
`Section 38.001......................................................................................................... 7
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`S&N Has Not Recovered Damages So It Cannot Recover Fees Under
`Section 38.001......................................................................................................... 8
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`The Fees S&N Expended Pursuing a Faulty Damages Theory Were Not
`Reasonable or Necessary As a Matter of Law ........................................................ 9
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`A Genuine Issue of Material Fact Exists Regarding Whether S&N Seeks
`Fees for Unrecoverable, Excessive, or Duplicative Work .................................... 11
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`At Minimum, a Genuine Issue of Material Fact Exists Regarding Whether
`S&N’s Fee Request Is Reasonable Under Arthur Anderson ................................ 13
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`Defendant Albert G. Hill, Jr., acting through the independent executor of his estate
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`Margaret Keliher, files this opposition to Plaintiff Shamoun & Norman, LLP’s (“S&N”) Motion
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`for Partial Summary Judgment, and in support would show the court as follows:
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`SUMMARY OF THE ARGUMENT
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`S&N asks this Court to award $1,844,684.08 as “reasonable and necessary” fees and
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`expenses for work prosecuting its quantum-meruit claim, even though it has admitted—in both
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`this Court and in the probate court—that the reasonableness of attorneys’ fees is “a fact question.”
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`See Ex. B, April 24, 2019 Probate Tr. at 35:16–36:11; see also May 1, 2019 Hearing Tr.1 What’s
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`worse, S&N admitted in both courts that it might simply withdraw its summary judgment motion
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`after Defendant files a response. Ex. B at 36:8–11 (“[A]nd if they [hire an expert], I’ll withdraw
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`my motion.”); see also May 1, 2019 Hearing Tr. This is gamesmanship in its purest form. This
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`Court should not continue to be led astray by S&N. Summary judgment is not appropriate for a
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`host of independent reasons.
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`First, because the reasonableness of fees is a fact question on which S&N bears the burden
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`of proof, summary judgment would be appropriate here only if S&N could conclusively prove that
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`the fee it is requesting is reasonable. Affidavits of interested witnesses are insufficient as a matter
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`of law, even when not contradicted. So S&N’s summary judgment motion fails out of the gate.
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`Additionally, even if S&N could carry its burden to conclusively prove the reasonableness
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`of its fee request (it cannot), S&N would not be entitled to the fee it seeks, as a matter of law,
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`because it has not recovered “damages,” as required under section 38.001, and section 38.001
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`authorizes recovery only from a “corporation” or an “individual”—the estate is neither.
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` 1 The transcript for the May 1, 2019 hearing has not yet been produced.
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR
`PARTIAL SUMMARY JUDGMENT
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`Page 1
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`Finally, a number of fact issues exist related to the reasonableness of S&N’s fee request.
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`For example, a reasonable jury could disagree with S&N’s contention that it would be reasonable
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`to award fees for the first trial where S&N made an unforced error by relying on the unsigned,
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`unenforceable contingent fee to quantify the value of the 150–400 hours of extra-contractual
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`settlement services that it claims it provided Defendant. A jury could also find that S&N’s fee
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`request is unreasonable because it includes duplicative or excessive hours, does not sufficiently
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`segregate between recoverable and non-recoverable fees, reflects unreasonably high hourly rates,
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`or seeks recovery for clerical work done by paralegals. If that were not enough (it should be), a
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`reasonable jury could simply disregard the testimony of Dan Tostrud and Charles Frazier, who
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`offer only conclusory statements related to the eight Arthur Andersen factors, in favor of testimony
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`of Defendant’s expert, former federal judge T. John Ward.
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`Summary judgment is not appropriate. S&N knows this. Yet, it filed its summary
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`judgment motion and had it set for a hearing under the guise of trying to move this case along. See
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`May 1, 2019 Hearing Tr. It is difficult to fathom how a borderline frivolous summary judgment
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`motion would do anything but unnecessarily force an opposing party to waste time responding
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`while running-up their expenses. At best, S&N wanted a sneak peek at Defendant’s strategy to
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`oppose its unreasonable $1.8 million fee request. S&N got what it wanted—for now. But its
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`summary judgment motion should be denied.
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`SUMMARY JUDGMENT EVIDENCE
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`In support of his opposition, Defendant relies on and fully incorporates the summary
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`judgment evidence attached as exhibits to this motion, including the affidavit of T. John Ward,
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`dated May 3, 2019, attached as Exhibit A.
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR
`PARTIAL SUMMARY JUDGMENT
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`Page 2
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`BACKGROUND
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`Between 2009 and 2010, Defendant Albert G. Hill, Jr. (“Defendant” or “Hill Jr.”) (who
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`died in December 2017) executed four written hourly engagement agreements with S&N, retaining
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`S&N to represent him in a number of pending suits, including, most significantly, a probate matter
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`and a federal racketeering (“RICO”) case. Both cases involved the Margaret Hunt Trust Estate—
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`a trust to which Hill, Jr. and his two sisters were beneficiaries. Hill v. Shamoun & Norman, LLP,
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`544 S.W.3d 724, 728–29 (Tex. 2018). The first two written hourly engagement agreements were
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`executed on November 19, 2009 and January 15, 2010, respectively, for the Abbott and the
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`Bordeaux trust cases—two smaller value cases brought by Hill, Jr. Id. at 728. Under these
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`engagement agreements, Hill Jr. agreed to pay $400 per hour for time expended by Gregory
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`Shamoun. See Ex. C, November 19, 2009 Engagement Agreement; Ex. D, January 15, 2010
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`Engagement Agreement. Two weeks later, Hill Jr. executed two new engagement agreements with
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`S&N in connection with a probate matter and a RICO matter, which increased Mr. Shamoun’s
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`billing rate to $650 per hour for services provided in connection with those matters. See Ex. E,
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`April 12, 2010 Engagement Agreement; Ex. F, April 13, 2010 Engagement Agreement.
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`S&N alleges that between March 27, 2010 and May 5, 2010, Shamoun was retained as
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`settlement counsel to settle the lawsuits involving the Hill family. On May 5, 2010, the parties to
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`the underlying Hill family litigation agreed to terms of a settlement. Hill, 544 S.W.3d at 730.
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`Three months later, S&N sent Hill, Jr. a demand letter seeking $11.25 million for its alleged
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`settlement services—based on the terms of an unsigned, unenforceable contingency fee agreement.
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`Id. After Hill, Jr. refused to pay, S&N sued. Id. at 730–31.
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`During the 10-day trial, S&N’s expert, Richard Sayles, testified that S&N’s services were
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`worth over $15 million, basing his opinion “on the assumption that th[e] alleged [contingency fee]
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`agreement was enforceable.” Id. at 731. For his part, Shamoun “testified that he worked between
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR
`PARTIAL SUMMARY JUDGMENT
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`Page 3
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`150 and 400 hours performing global settlement services for Hill.” Id. The jury found for S&N
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`and awarded $7.25 million on its quantum-meruit claim. Id. at 732. The trial court granted Hill
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`Jr.’s motion to set aside the jury’s findings and rendered a take-nothing judgment. Id.
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`The Texas Supreme Court ultimately held that Mr. Sayles’s “opinion as to the reasonable
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`value of the firm’s services cannot be given legal weight” because it relied on an unsigned,
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`unenforceable oral contingency fee agreement, and, “without it, there is legally insufficient
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`evidence to support the jury’s award.” Id. at 728. But the Texas Supreme Court remanded for a
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`new trial on the narrow issue of determining the reasonable value of the 150–400 hours of extra-
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`contractual settlement services that S&N claims it provided to Hill Jr. Id.
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`By its motion for summary judgment, S&N seeks prematurely to recover $1,844,684.08
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`for the attorneys’ fees and expenses it has expended through February 2019.
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`LEGAL STANDARDS
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`At summary judgment, the moving party must establish that no genuine issue of material
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`fact exists and that it is entitled to judgment as a matter of law. Lujan v. Navistar, Inc., 555 S.W.3d
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`79, 84 (Tex. 2018). “If the movant carries this burden, the burden shifts to the nonmovant to raise
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`a genuine issue of material fact precluding summary judgment.” Id. The Court must “credit
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`evidence favoring the non-movant, indulging every reasonable inference and resolving all doubts
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`in his or her favor.” Id. Summary judgment is appropriate where “ordinary minds could not differ
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`as to the conclusion to be drawn from the evidence.” Mitchell v. State Farm Lloyds, 05-08-00184-
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`CV, 2009 WL 596611, at *2 (Tex. App.—Dallas Mar. 10, 2009, no pet.) (citing Triton Oil & Gas
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`Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982)).
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`And when requesting attorneys’ fees, the requesting party “bears the burden of proof.” El
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`Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762–63 (Tex. 2012). That burden requires actual proof—
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`not conjecture or surmise—that the requested fees are “both reasonably and necessarily incurred
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR
`PARTIAL SUMMARY JUDGMENT
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`Page 4
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`in the prosecution of the case.” Lubbock Cty. v. Strube, 953 S.W.2d 847, 858 (Tex. App.—Austin
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`1997, pet. denied). Texas Courts evaluate fee requests using the “lodestar method” explained in
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`El Apple I, Ltd. v. Olivas in combination with the factors articulated in Arthur Andersen & Co. v.
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`Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
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`Last week, the Texas Supreme Court “made clear” that the lodestar method has an
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`“expansive application to be used when evidence of reasonable hours worked multiplied by
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`reasonable hourly rates can provide an objective analytical framework that is presumptively
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`reasonable.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, __ S.W.3d __, 2019 WL
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`1873428, *17, 20 (Tex. 2019) (emphasis added) (“It should have been clear from our opinions in
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`El Apple, Montano, and Long that we intended the lodestar analysis to apply to any situation in
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`which an objective calculation of reasonable hours worked times a reasonable rate can be
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`employed.”) (emphasis added). “Based on [the Supreme Court’s] recent precedent, it should have
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`been clear that the lodestar method developed as a ‘short hand version’ of the Arthur Andersen
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`factors2 and was never intended to be a separate test or method.” Id. at *18 (citing for support Hill,
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`544 S.W.3d at 744 and describing the outcome as “remanding for a new trial to determine
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`attorney’s fees and referencing Arthur Andersen factors but citing Bloyed, 916 S.W.2d at 961, for
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`the proposition that on remand ‘any fee awarded . . . should be tested against the lodestar approach
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` 2 The eight factors are:
`(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill
`requisite to perform the legal service properly;
`(2) The likelihood, if apparent to the client, 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 circ*mstances;
`(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 Andersen, 945 S.W.2d 812, 818; see also Tex. Disc. R. Prof. Conduct 1.04(b)(1)–(8).
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR
`PARTIAL SUMMARY JUDGMENT
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`Page 5
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`to prevent grossly excessive attorney’s fee awards.’”) (emphasis added). The Arthur Andersen
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`factors will generally be used to determine the reasonable hours and rates that are plugged into the
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`lodestar calculation. Id. at *21 (“[W]e recognize that the base lodestar figure accounts for most of
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`the relevant Arthur Andersen considerations.”).
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`And “there is a presumption that the base lodestar calculation, when supported by sufficient
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`evidence, reflects the reasonable and necessary attorney’s fees.” Id. Indeed, even a jury is to “be
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`instructed that the base lodestar figure is presumed” reasonable and necessary. Id. at *22.
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`Sufficient evidence includes, at a minimum: “(1) particular services performed, (2) who performed
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`those services, (3) approximately when the services were performed, (4) the reasonable amount of
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`time required to perform the services, and (5) the reasonable hourly rate for each person performing
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`such services.” Id.
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`ARGUMENT
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`I.
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`The Reasonableness of Fees Is a Fact Issue and S&N Cannot Conclusively Prove that
`$1.8M Is Reasonable
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`As an initial matter, “[t]he reasonableness of attorney’s fees is ordinarily left to the
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`factfinder.” Smith v. Patrick W.Y. Tam Tr., 296 S.W.3d 545, 547 (Tex. 2009). The party opposing
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`the fee request is not required to offer expert testimony to create a fact issue sufficient to defeat
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`summary judgment. Id. Indeed, when only the “testimony of an interested witness, such as a
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`[moving party’s attorney],” is proffered in support of the fee request, the interested witness “does
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`no more than raise a fact issue to be determined by the jury”—even when not contradicted. Id. To
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`succeed on summary judgment via interested testimony, “the testimony of [the] interested witness
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`[can]not [be] contradicted by any other witness, or attendant circ*mstances,” and it must be “clear,
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`direct and positive, and free from contradiction, inaccuracies, and circ*mstances tending to cast
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`suspicion thereon.” Id. (quoting Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881–
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR
`PARTIAL SUMMARY JUDGMENT
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`Page 6
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`82 (Tex. 1990)). Thus, “[a]ttorney’s fees may be awarded on a summary judgment only if the
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`evidence is conclusive.” See Top Cat Ready Mix, LLC v. All. Trucking, L.P., 5-18-00175-CV,
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`2019 WL 275880, at *6 (Tex. App.—Dallas Jan. 22, 2019, no pet.). Here, not only does S&N
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`submit only interested evidence via its attorneys, but there exists contradictory evidence, including
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`the opinion of Hill, Jr.’s expert, Judge T. John Ward. See Ex. A, Ward Affidavit. Because
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`“[t]estimony from a party’s attorney about the party’s attorney’s fees is taken as true as a matter
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`of law [only] if the testimony is not contradicted by any other witness and is clear, positive, direct,
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`and free from contradiction,” S&N’s motion for summary judgment fails as a matter of law. Top
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`Cat Ready Mix, 2019 WL 275880, at *6 (quotation marks omitted) (emphasis added).
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`II.
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`Because the Hill Estate Is Neither a “Corporation” Nor an “Individual”—i.e., a
`Human Being—S&N Cannot Recover Attorneys’ Fees Under Section 38.001
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`Section 38.001 of the Texas Civil Practice and Remedies Code allows a “person [to]
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`recover reasonable attorney’s fees from an individual or corporation.” Tex. Civil Prac. & Rem.
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`Code § 38.001 (emphasis added). Courts narrowly construe the “individual or corporation”
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`language of section 38.001 to preclude recovery of attorneys’ fees against legal entities that are
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`not strictly “individuals or corporations.” See, e.g., CBIF Ltd. P’ship v. TGI Friday’s Inc., No.
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`05–15–00157–cv, 2017 WL 1455407, at *25 (Tex. App.—Dallas, Apr. 21, 2017, pet. denied)
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`(collecting cases). “Texas courts of appeals and federal courts interpreting § 38.001 have
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`uniformly held that the term ‘individual’ refers to ‘humans.’” Hoffman v. L&M Arts, No. 3:10–
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`CV–0953–D, 2015 WL 1000838, at *5 (N.D. Tex. March 6, 2015) (collecting cases), aff’d, 838
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`F.3d 568 (5th Cir. 2016); Base-Seal, Inc. v. Jefferson Cty, 901 S.W.2d 783, 786 (Tex. App.—
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`Beaumont 1995, writ denied) (“The change in wording from ‘person’ to ‘individual’ signifies that
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`the classification in § 38.001 is intended to restrict the term ‘person’ to an individual human
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`being.”). And section 38.001 expressly distinguishes between a “person” who may recover fees
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR
`PARTIAL SUMMARY JUDGMENT
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`Page 7
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`and an “individual” who may be forced to pay those fees. See, e.g., First Cash, Ltd. v. JQ-
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`Parkdale, LLC, 538 S.W.3d 189, 199 (Tex. App.—Corpus Christi 2018, no pet.) (“Similarly,
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`[section 38.001] makes attorney’s fees available to a ‘person,’ as that term is broadly defined under
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`the code construction act, but makes such fees available from an ‘individual or corporation.’ The
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`Legislature clearly knew how to make attorney’s fees available to all legal entities, but
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`intentionally chose not to make them available from all legal entities.”) (internal citations
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`omitted).3
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`Because the Hill Estate is neither a “corporation” nor an “individual”—that is, it is not a
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`human being—S&N may not recover fees under section 38.001 from Defendant. S&N’s summary
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`judgment motion should therefore be denied as a matter of law. Id. at 200 (“When interpreted
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`according to its plain language, section 38.001 [means that] . . . attorney’s fees may only be
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`assessed against a natural person or an actual corporation.”).
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`III.
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`S&N Has Not Recovered Damages So It Cannot Recover Fees Under Section 38.001
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`“To recover under section 38.001(8), a party must (1) prevail on his cause of action and (2)
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`recover damages.” Sharifi v. Steen Auto., LLC, 370 S.W.3d 126, 152 (Tex. App.—Dallas 2012,
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`no pet.). S&N has yet to recover anything of value, and thus cannot carry its burden on the second
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`element. MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 666 (Tex. 2009)
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`(“The second requirement is implied from the statute’s language: for a fee recovery to be ‘in
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`addition to the amount of a valid claim,’ the claimant must recover some amount on that claim.
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` 3 The Texas Code of Construction Act defines “person” as “includ[ing] corporation, organization, government or
`governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal
`entity.” Tex. Gov’t Code § 311.005. The term “individual” must therefore be distinct from that definition. See
`Fleming & Assoc., L.L.P. v. Barton, 425 S.W.3d 560, 575 (Tex. App—Houston [14th Dist.] 2014, pet. denied)
`(invoking the doctrine of expression unius est exclusion alterious to support excluding an LLC from the definition
`of “individual” or “corporation” as that “maxim . . . reflects the principle that the expression of one implies the
`exclusion of another”).
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR
`PARTIAL SUMMARY JUDGMENT
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`Page 8
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`[Thus], some damages are necessary to recover fees under this statute.”); Rohrmoos Venture, 2019
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`WL 1873428, *9 (comparing section 38.001 with provisions of contract at issue and noting that
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`“[n]othing in that contract provision requires that a party receive any damages, as we have held is
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`required under Chapter 38”); Ameritech Servs., Inc. v. SCA Promotions, Inc., No. 05-03-00247-
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`cv, 2004 WL 237760, at *3 (Tex. App.—Dallas Feb. 10, 2004, no pet.) (“There must be a recovery
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`of money, or at least something of value; otherwise the attorney’s fee award cannot be described
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`as an ‘addition’ to the claimant’s relief.”) (internal quotation marks omitted); Rodgers v. RAB
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`Invests., Ltd., 816 S.W.2d 543, 551 (Tex. App.—Dallas 1991, no writ) (“Without a jury finding of
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`damages or a recovery of money, there can be no award of attorney’s fees.”). On remand, S&N
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`must do what it failed to do at the first trial and recover damages supported by legally sufficient
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`evidence. See Green Intern. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997) (reversing an attorneys’
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`fees award because, although a jury found that a contract was breached, it awarded zero damages
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`for the breach); State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex. 1995) (“While we
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`assume without deciding that Terri prevailed under Article 21.21, she cannot recover attorney’s
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`fees because she has recovered no damages.”) (emphasis added).4
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`IV.
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`The Fees S&N Expended Pursuing a Faulty Damages Theory Were Not Reasonable
`or Necessary As a Matter of Law
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`The Texas Supreme Court upheld the trial court’s decision to “disregard[] the jury’s finding
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`of $7,250,000,” “hold[ing] that the evidence” at the first trial was “legally insufficient to support
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`the jury’s” award of damages. Hill, 544 S.W.3d at 740, 744. In other words, the Texas Supreme
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` 4 S&N’s attempt to preemptively negate this argument (at 6 n.21) by saying no court has held that recovery of
`damages is a necessary prerequisite in a quantum meruit action is to no avail. The Texas Supreme Court has
`consistently delineated the elements that must be proven under section 38.001, and S&N offers no reason as to
`why a quantum-meruit claim should be treated differently. See MBM Fin. Corp. v. Woodlands Operating Co.,
`L.P., 292 S.W.3d 660, 666 (Tex. 2009) (“To recover fees under this statute, a litigant must do two things:
`(1) prevail on a breach of contract claim, and (2) recover damages.”); Green Intern., 951 S.W.2d at 390 (same);
`Beaston, 907 S.W.2d at 437 (same). And lower courts have utilized that standard in evaluating attorneys’ fees in
`quantum-meruit actions.
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR
`PARTIAL SUMMARY JUDGMENT
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`Page 9
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`Court affirmed the trial court’s decision to disregard the jury’s verdict. For that reason, S&N
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`should be barred from recovering fees for the first trial—because those fees were not “reasonable
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`and necessary.” Rohrmoos Venture, 2019 WL 1873428, at *12 (“When a claimant wishes to obtain
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`attorney’s fees from the opposing party, the claimant must prove that the requested fees are both
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`reasonable and necessary.”) (emphasis added); Anani v. Abuzaid, No. 05-16-01364-cv, 2018 WL
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`2926660, at *9 (Tex. App.—Dallas June 7, 2018, no pet.) (“A party seeking to recover attorney’s
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`fees has the burden to show that the fees were reasonable and necessary, which, among other
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`things, requires the party to show the fees were incurred on a claim that allows recovery of such
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`fees.”) (emphasis added); Crounse v. State Farm Mut. Auto. Ins. Co., 336 S.W.3d 717, 720 (Tex.
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`App.—Houston [1st Dist.] 2010, pet. denied) (“Accordingly, under chapter 38 . . . a prevailing
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`party . . . is entitled to recover attorney’s fees if the requisite elements are proven showing the
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`amount of his reasonable and necessary attorney’s fees.”).
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`S&N’s unforced error in the first trial—reliance on an unsigned, unenforceable contingent
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`fee agreement to quantify the value of the 150–400 hours of extra-contractual services that it claims
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`it provided—necessitated a second trial that could have been avoided had S&N presented legally
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`sufficient evidence of the value of its legal services during the first two-week jury trial. S&N
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`should not be allowed to recover attorneys’ fees for both the first trial, in which it failed to present
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`legally sufficient evidence to prove its claim, and the proceedings on remand. McAdams v.
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`McAdams, No. 07-01-0343-cv, 2002 WL 342639, at *13 (Tex. App.—Amarillo Mar. 1, 2002, no
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`pet.) (approving award for less than the amount requested under 38.001 due in part because the
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`claimant “was unsuccessful in a portion of the first trial”); Shott v. Rush-Presbyterian-St. Luke’s
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`Med. Ctr., 338 F.3d 736, 741 (7th Cir. 2003) (“[W]hen a plaintiff prevails at a second trial, he or
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`she may receive attorney’s fees for both trials so long as the mistake that made the second trial
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR
`PARTIAL SUMMARY JUDGMENT
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`Page 10
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`necessary is not attributable to the plaintiff.”) (citations omitted); Riddle v. Tex-Fin, Inc., No.
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`CIV.A. H-08-3121, 2011 WL 1103033, at *9 (S.D. Tex. Mar. 22, 2011) (“Courts generally do not
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`allow an award of fees for the first trial if the prevailing party is responsible for the need for a
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`second trial.”). And Defendant should not be penalized for S&N’s unforced error in the first trial.
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`V.
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`A Genuine Issue of Material Fact Exists Regarding Whether S&N Seeks Fees for
`Unrecoverable, Excessive, or Duplicative Work
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`As the party seeking summary judgment on a claim for which it bears the burden of proof,
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`S&N bears the burden to substantiate both the hours worked and the rates claimed. Rohrmoos
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`Venture, 2019 WL 1873428, at *15 (holding that the fee applicant has the “burden of showing that
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`the claimed rate and number of hours are reasonable”); Kinsel v. Lindsey, 526 S.W.3d 411, 427
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`(Tex. 2017) (“The party seeking recovery bears the burden of proof to support the award.”). It has
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`failed on both accounts—its attorneys’ claimed hours are inflated and excessive and are billed at
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`unreasonably high rates for this jurisdiction. As explained by Defendant’s expert, S&N cannot
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`conclusively prove that its fee request is reasonable for at least the following reasons.
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` S&N Failed to Exclude Duplicative and Excessive Hours. S&N made no effort to
`exclude excessive hours from its calculation of “reasonable and necessary” attorneys’
`fees under section 38.001, including (for example) the approximately 89 hours that
`Kayla Wells, Lauren Stone, and Gregory Shamoun each worked on researching the
`recovery of attorneys’ fees in July, August, and October 2018. As the Texas Supreme
`Court explained in El Apple, “[c]ounsel for the prevailing party should make a good
`faith effort to exclude from a fee request hours that are excessive, redundant, or
`otherwise unnecessary . . . .” El Apple, 370 S.W.3d at 762.
`
` S&N Failed to Sufficiently Segregate Recoverable and Unrecoverable Fees. S&N
`may recover fees only for the reasonable and necessary time its attorneys spent working
`on the quantum-meruit claim against Defendant—not for the time spent working on
`claims on which it lost (e.g., its contract and quasi-estoppel claims) or abandoned (its
`civil-conspiracy claim). See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311
`(Tex. 2006). And S&N may not recover fees for work spent pursuing claims for which
`fees are not recoverable (like fraud and fraudulent inducement) or against anyone other
`than Defendant (like the individuals it nonsuited). Id. S&N’s arbitrary reductions of
`its billing are nothing more than a rough “guesstimate” that the jury might reject—and
`they certainly fail to conclusively prove that S&N’s fee request is both reasonable and
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR
`PARTIAL SUMMARY JUDGMENT
`
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`Page 11
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`

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`necessary. See San Antonio Credit Union v. O’Connor, 115 S.W.3d 82, 106 (Tex.
`App.—San Antonio 2003, pet. denied).
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` S&N’s Billing Records Contain Vague Entries. Examples of S&N’s vague entries
`include: “revise memorandum,” “review pleadings,” “review documents,” and
`“correspondence.” Gregory Shamoun himself billed approximately 25.5 hours to
`entries that say something to the effect of: “Review; conference; e-mail” or “telephone
`conference; e-mail; review; edits; research; drafts.” To make matters worse, many of
`S&N’s attorneys engaged in “block billing” or their time entries are inexplicably
`redacted, which prevents a meaningful review of the work that they performed. “[T]he
`jury as factfinder [i]s entitled to consider the redactions when making its determination
`of a reasonable amount of attorneys’ fees,” John Moore Servs., Inc. v. Better Bus.
`Bureau of Metro. Houston Inc., No. 01-14-00906-cv, 2016 WL 3162206, at *6 (Tex.
`App.—Houston [1st Dist.] June 2, 2016, no pet.), and it also “may properly reduce or
`eliminate hours when the supporting documentation is too vague to permit meaningful
`review,” Barrow v. Greenville Indep. Sch. Dist., No. 3:00-CV-0913-D, 2005 WL
`6789456, at *11 (N.D. Tex. Dec. 20, 2005).
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` S&N’s Attorneys’ Hourly Rates Are Unreasonably High. The publicly available
`Texas Bar Association 2013 Hourly Fact Sheet estimates that the median hourly rate
`for Dallas attorneys practicing commercial litigation and appellate law is $281 and
`$271 respectively. Ex. G at 9–10. Yet the attorneys representing S&N charged a higher
`hourly rate. For example, CMW associates charged $300/hr. for their work on this
`case, and CMW partners charged $600/hr. Tostrud Affidavit at 2. And S&N partners
`claim $600 as a reasonable hourly rate across the board. Id. at 3. A jury could agree
`that a reasonable hourly rate for S&N’s lawyers should fall within the range set forth
`in the State Bar’s Hourly Fact sheet.
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` S&N Failed to Conclusively Prove that its Paralegal Fees Are Recoverable. S&N
`seeks to recover paralegal fees, including (for example) for the 40-plus hours Christina
`Demas spent on tasks like “Copying, examining, and organizing documents” and the
`80-plus hours that Keli Boland spent on tasks like “faxing letters” and “converting
`documents to PDF format.” Paralegal fees may be recovered only “to the extent that
`the work performed has traditionally been done by an attorney.” Seabron v. Seabron,
`No. 04–12–00482–CV, 2013 WL 4685440, at *6 (Tex. App.—San Antonio Aug. 30,
`2013, no pet.). And S&N has failed to conclusively prove “(1) the qualifications of the
`legal assistant [performing] substantive legal work; (2) that the legal assistant
`performed substantive legal work under the direction and supervision of an attorney;
`(3) the nature of the legal work performed; (4) the legal assistant’s hourly rate; and (5)
`the number of hours expended by the legal assistant.” Multi-Moto Corp. v. ITT
`Commercial Fin. Corp., 806 S.W.2d 560, 570 (Tex. App.—Dallas 1990, writ denied).
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR
`PARTIAL SUMMARY JUDGMENT
`
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`Page 12
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`VI. At Minimum, a Genuine Issue of Material Fact Exists Regarding Whether S&N’s Fee
`Request Is Reasonable Under Arthur Anderson
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`The Court should deny S&N’s summary judgment motion for a separate and independent
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`reason: A genuine fact dispute exists regarding whether the Arthur Andersen factors support
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`S&N’s $1,844,684.08 fee request. Both Mr. Tostrud’s and Mr. Frazier’s assessment