The Texas Attorney’s Fee Blog*
Just when I was preparing to have an academic, yet scintillating, discussion regarding the argument that appellate courts should render when they reverse cases for insufficient evidence of attorneys’ fees, which was certain to stir multiple contentious debates around the latte bar, the Texas Supreme Court held that the fee proponent need not comply with lodestar. See Yowell v. Granite Operating Co., No. 18-0841, 2020 Tex. LEXIS 425 (Tex. May 15, 2020). Since this opinion (a) comes from the Texas Supreme Court and (b) departs from what David Kirby and I write about appellate fee proof, I decided this actual holding preempted the theoretical ruminations.
In somewhat of a side issue in a case involving a disputed mineral lease interest, the Texas Supreme Court, in an opinion authored by Justice Busby, acknowledged:
We have not previously addressed how this lodestar analysis may affect the evidence needed to support a contingent award of fees that have not yet been incurred. . . . As we explained in Rohrmoos Venture, however, “[i]t should have been clear from our opinion in El Apple” that the lodestar analysis applies to situations “in which an objective calculation of reasonable hours worked . . . can be employed.” 578 S.W.3d at 498.
Id. at *36–37. In rejecting the argument that appellate fees should be proved with the same specificity as trial fees, the supreme court explained that lodestar cannot be employed when projecting appellate fees because those hours have not been worked. See id. at *37. Additionally, “there is no certainty regarding who will represent the appellee in the appellate courts, what counsel’s hourly rate(s) will be, or what services will be necessary to ensure appropriate representation in light of the issues the appellant chooses to raise.” Id.