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REASONABLENESS OF ATTORNEY'S FEES AWARD
The reasonableness of attorney’s fees is ordinarily left to the trier of fact, and a reviewing court may
not substitute its judgment for the jury’s. Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex.
2009); Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990) (per curiam).
Factors to be considered in determining the amount of attorney’s fees to be awarded include the
following: (1) the time and labor required, novelty and difficulty of the questions presented, and the
skill required; (2) the likelihood that acceptance of employment precluded other employment; (3) the
fee customarily charged for similar services; (4) the amount involved and the results obtained; (5) the
time limitations imposed by the client or the circumstances; (6) the nature and length of the
professional relationship with the client; (7) the expertise, reputation, and ability of the lawyer
performing the services; and (8) whether the fee is fixed or contingent. Arthur Andersen & Co. v.
Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). “A reasonable fee is one that is not excessive
or extreme, but rather moderate or fair.” Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010).
Generally, the reasonableness of attorney's fees is a question of fact that must be determined by the fact-
finder and be supported by competent evidence. See Great Am. Reserve Ins. Co. v. Britton, 406 S.W.2d 901,
906 (Tex. 1966). First National's holding ultimately rests on section 38.004 of the Texas Civil Practice and
Remedies Code which permits the trial court to take judicial notice of the usual and customary fees. See Tex.
Civ. Prac. & Rem. Code Ann. § 38.004 (Vernon 2008); see also id.§ 38.003 (providing rebuttable presumption
that usual and customary fees for claim of type described in section 38.001 are reasonable). However, that
section is not applicable in a request for attorney's fees that is not made under section 38.001 of the Texas
Civil Practice and Remedies Code. See id.; TEX. CIV. PRAC. & REM. CODE ANN. §38.001 (Vernon 2008);
Charrette v. Fitzgerald, 213 S.W.3d 505, 515 (Tex. App.-Houston [14th Dist.] no pet.); Hasty, Inc. v. Inwood
Buckhorn Joint Venture, 908 S.W.2d 494, 503 (Tex. App.-Dallas 1995, writ denied). Because the attorney's
fees at issue were not awarded under section 38.001, but rather as damages, then the trial court could not
take judicial notice of the usual and customary fees in making its award.
The amount of attorney’s fees sought also must bear some reasonable relationship to
the amount in controversy. USAA County Mut. Ins. Co. v. Cook, 241 S.W.3d 93, 103 (Tex. App.—
Houston [1st Dist.] 2007, no pet.). Although proof of the number of hours and corresponding hourly rate are
not necessarily required, the trial court generally relies on evidence of hours expended and the attorney’s
stated hourly rate to determine whether the requested fee is reasonable for the nature and extent of the
services performed. McGee v. Deere & Co., No. 03-04-00222-CV, 2005 WL 670505, *4 (Tex. App.—Austin
Mar. 24, 2005, pet. denied) (mem. op.) (citing Collins v. Guinn, 102 S.W.3d 825, 836 (Tex. App.—Texarkana
2003, pet. denied)).
McGlown v. Park (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(summary judgment for home owner's
association reversed; failure to prove case and attorney's fees, attorney fee award in summary judgment
proceeding not proper if amount disputed)
REVERSE TC JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS:
Before Justices Taft, Bland and Sharp
01-08-00619-CV Willie McGlown Jr. v. Ashford Park, et al.
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Jacqueline Lucci Smith
Tonkin v. Amador (Tex.App- Houston [1st Dist.] May 21, 2009)(Alcala)
(attorney fee litigation, promissory note, material terms of note, evidence of reasonableness of attorney's fees
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Judge Wilson, Justices Alcala and Hanks
01-07-00496-CV Ronald H. Tonkin v. Lee Roy Amador
Appeal from County Civil Court at Law No 3 of Harris County
Trial court judges: Linda Storey; Visiting Judge Ed Landry
Jay Petroleum, LLC v. EOG Resources, Inc. (Tex.App.- Houston [1st Dist.] May 7, 2009)(Alcala)
(scope of remand, implications of relief requested or not prayed for in court of appeals, remand of
counterclaims, attorney's fees, fact issue as to reasonableness of attorney's fees, inflated number of hours
claimed, controverting countervailing fee affidavit by attorney)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Hanks
Jay Petroleum, L.L.C. v. EOG Resources, Inc., f/k/a Enron Oil & Gas Company
Appeal from 189th District Court of Harris County
Trial Court Judge: Hon. William R. Burke. Jr.
The Travis Law Firm v. Woodson Wholesale (Tex.App.- Houston [14th Dist.] Oct. 21, 2008)(Frost)
(attorney's fees litigation, small amount of damages recovered, excessive attorney fee demand denied)
AFFIRMED: Opinion by Justice Frost
Before Justices Frost, Seymore and Brown
14-07-00204-CV The Travis Law Firm, A Professional Corporation v. Woodson Wholesale Inc.
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: R. Jack Cagle
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