Opinion
Civil Action No. 3:01-CV-2663-BF
December 31, 2003
MEMORANDUM OPINION AND ORDER
Pursuant to the United States Bankruptcy Court's October 31, 2003 Order terminating the automatic stay to permit this Court to rule on Plaintiff's' "Motion for Costs and Attorney's Fees," filed June 19, 2003, the Court shall now determine the merits of the motion. Plaintiff's seek $98,938.91 in attorney's fees and costs, including reimbursement for their time invested as pro se litigants. Having considered Plaintiff's' "Additional Evidence in Support of Plaintiff's' Motion for Costs and Attorney's Fees," filed August 4, 2003, detailing the hourly rate charged by their attorneys, the number of hours worked by their attorneys, and the services provided by their attorneys, Plaintiff's' "Motion for Costs and Attorney's Fees" is hereby GRANTED in part and DENIED in part.
Defendant did not file a response in opposition to Plaintiff's' "Additional Evidence in Support of Plaintiff's' Motion for Costs and Attorney's Fees."
I. Background
On May 19, 2003, the jury returned a verdict in favor of the Plaintiff's, Bruce and Joe Campbell ("Plaintiff's"), and against the defendant, Tracy Barnes ("Barnes"), in the amount of $675,000 for the breach of contract; $150,000 for the infringement of the copyright numbered VA-1-042-562 (`562); and $150,000 for the infringement of the copyright numbered VA-1-042-563 (`563). (June 4, 2003 Order). On June 4, 2003, the Court entered an Order granting in part and denying in part Barnes's motion for judgment as a matter of law as to damages. (Id.) The Court granted Barnes's motion as to the damages for both the `562 and `563 copyright infringements. (Id at 3). However, the Court denied Barnes's motion as to the damages for the breach of contract. (Id at 2). Therefore, the Court entered its final judgment ordering that Plaintiff's take $675,000 from Barnes for the breach of contract and nothing for the copyright infringements. (June 4, 2003 Final Judgment). The Court also ordered that Plaintiff's were entitled to recover postjudgment interest at a rate of 1.13%, as well as their attorney's fees and costs. (Id.).
On June 19, 2003, Plaintiff's filed a "Motion for Costs and Attorney's Fees." (June 19, 2003 Motion for Attorney's Fees). Defendants then filed a response on June 26, 2003. (June 26, 2003 Response to P.s' Motion for Attorney's Fees). However, on July 17, 2003, the Court ordered Plaintiff's to submit additional evidence in support of their motion. (July 17, 2003 Order).
The Court now turns to discuss the legal standards that will guide its analysis.
II. Legal Standard
"State law controls both the award of and the reasonableness of fees awarded where state law supplies the rule of decision." Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002). Texas law provides that "a person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for . . . an oral or written contract." TEX. Civ. PRAC. REM. § 38.001(8) (Vernon 2002). "To obtain an award of attorney's fees under . . . Section 38.001 of the Civil Practice and Remedies Code, a party must (1) prevail on a cause [sic] of action for which attorney's fees are recoverable, and (2) recover damages." State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex. 1995). See also World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 683 (Tex.App.-Fort Worth 1998, pet. denied) ("A trial court has discretion to fix the amount of attorney's fees, but it does not have the discretion to completely deny attorney's fees if they are proper under section 38.001."). In determining the amount of reasonable attorney's fees to be awarded, a finder of fact should consider eight factors:
The Court looks to Texas law in its analysis because Plaintiff's prevailed on their breach of contract claim. (See both the Order and Final Judgment, entered June 4, 2003).
(1) the time and labor required, the novelty and 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 Andersen Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997). See also Vela v. City of Houston, 276 F.3d 659, 679-81 (5th Cir. 2001) (affirming an award of $2.8 million in attorney fees because "[t]he district court separately considered each Arthur Andersen factor.").
However, "[w]hile these are factors that may be considered, the court is not required to receive evidence on each of those factors." Hagedorn v. Tisdale, 73 S.W.3d 341, 353 (Tex.App.-Amarillo 2002, no pet.). The Arthur Andersen factors used by the Texas Supreme Court are virtually identical to the Johnson factors used by the Fifth Circuit. See Mid-Continent Cas. Co. v. Chevron Pipe Line Co., 205 F.3d 222, 232 (5th Cir. 2000). Finally, the burden is on the party seeking attorney's fees to establish an entitlement to the attorney's fees. See Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991).
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) (outlining 12 factors to take into consideration when making the "reasonableness" determination for attorney's fees and costs).
The Court now turns to address the merits of the motion.
III. Analysis
A. Attorney's Fees
Plaintiff's seek to recover $53,440.00 in attorney's fees for their time invested as pro se litigants. However, to recover attorney's fees under Chapter 38 of the Texas Civil Practice and Remedies Code, "the claimant must be represented by an attorney. . . ." TEX. Civ. PRAC. REM. CODE ANN. § 38.002 (Vernon 2002) (emphasis added). Therefore, because Plaintiff's are not attorneys, they are not entitled to $53,440.00 for their time invested as pro se litigants.
Plaintiff's also seek to recover $44,200.00 for their Dallas attorneys, and $600.00 for their San Antonio attorneys. Here, Plaintiff's prevailed on their breach of contract action, from which Plaintiff's recovered damages in the amount of $675,000.00. (June 4, 2003 Final Judgment). Plaintiff's also submitted proof of reasonable fees by submitting an affidavit drafted by one of their Dallas attorneys. Therefore, Plaintiff's have met the standard to recover attorney's fees for their Dallas attorneys under Section 38.001. However, Plaintiff's failed to submit any evidence documenting that Plaintiff's were represented by counsel in San Antonio. The Court is thus unable to determine the amount of reasonable attorney's fees to be awarded to Plaintiff's' San Antonio attorneys. Mathis, 302 F.3d at 462 ("Under Texas law, when a prevailing party in a breach of contract suit seeks fees, an award of reasonable fees is mandatory, as long as there is proof of reasonable fees. . . .") (emphasis added). The Court must now determine the amount of reasonable attorney's fees to be awarded to Plaintiff's' Dallas attorneys. Here, Plaintiff's supported their motion for attorney's fees by submitting detailed reports and documentation of their Dallas attorneys. Specifically, the record contains evidence of the total amount of fees claimed and the hourly rate charged by each attorney working on the case. Furthermore, Plaintiff's' former counsel Dena L. Mathis submitted an affidavit in which she stated:
I am an attorney licensed to practice law in the State of Texas since 1986. I have been continuously licensed in Texas since 1986 and have handled various cases involving claims similar to the instant case during that time. . . . I am familiar with the usual and customary charges for legal fees in matters such as this matter now before this Court, and it is my opinion that the services performed in this matter were necessary and reasonable with regard to the representation of Plaintiff's. . . . It is my opinion that the legal services performed with regard to the representation of Plaintiff's were the usual and customary services that are rendered by an attorney for a suit of this nature. It is my further opinion that reasonable and necessary attorneys' fees for the legal services rendered in this matter up to the time we withdrew from representing Plaintiff's is $44,200.00.
(Mathis Affidavit at 2).
Therefore, in light of the Arthur Andersen factors, the Court concludes that there is competent evidence in the record to support an award of attorney's fees in the amount of $44,200.00 for Plaintiff's' Dallas attorneys. B. Costs
Plaintiff's also seek to recover $698.91 in other related non-taxable expenses. While Section 38.001 refers generally to "costs," Texas courts have declined to award non-taxable costs, or expenses, under this section. TEX. Civ. PRAC. REM. CODE ANN. § 38.002 (Vernon 2002); Flint ASSOC. v. Intercontinental Pipe Steel, Inc., 739 S.W.2d 622, 626-27 (Tex.App.-Dallas 1987, writ denied) (stating that photocopy, travel, long distance, postage, and messenger expenses "make up the overhead of a law practice, [and] are considered in setting hourly billing rates and reasonable fees, and may be recovered as a component of such fees."). Therefore, because there is no basis for recovering such non-taxable expenses, Plaintiff's are not entitled to their requested $698.91 in expenses.
IV. Conclusion
For the foregoing reasons, Plaintiffs' "Motion for Costs and Attorney's Fees" is GRANTED in part and DENIED in part Specifically, Plaintiff's are entitled to an award of attorney's fees from Defendants in the amount of $44,200.00. Furthermore, Plaintiff's are not entitled to recover the remaining $53,440.00 for their time invested as pro se litigants, nor are Plaintiff's entitled to recover their non-taxable expenses of $698.91.