Opinion
01-22-00158-CV
08-31-2023
TITE WATER ENERGY, LLC, Appellant v. WILD WILLY'S WELDING LLC, Appellee
On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2018-56622
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.
MEMORANDUM OPINION
Veronica Rivas-Molloy Justice
Appellant Tite Water Energy, LLC appeals from a judgment rendered on a jury verdict in favor of Appellee Wild Willy's Welding LLC on Appellee's breach of a defense and indeminficaiton clause. In four issues on appeal, Appellant argues (1) the trial court erred by not predicating the award of appellate fees based on Appellee's success at different levels of the appeal, (2) the trial court abused its discretion by including a jury question containing superfluous language and definitions, (3) there is legally and factually insufficient evidence supporting the award of attorney's fees to Appellee, and (4) the trial court abused its discretion by not granting Appellant's Motion for Judgment Notwithstanding the Verdict, Motion for New Trial, or Motion to Modify the Judgment. We affirm the trial court's judgment.
Background
This appeal stems from a claim of indemnity and defense arising out of a Master Service Agreement between Devon Energy Corporation and its contractor Tite Water Energy, LLC. Colby Bigbey was injured in an explosion while working at a saltwater reclamation plant in Kingfisher, Oklahoma owned by Devon. While Bigbey was offloading saltwater at the plant, Devon, Appellant Tite Water, and Appellee Wild Willy's Welding LLC were conducting operations to pull oil from the bottom of a storage tanker. An explosion occurred and Bigbey sustained injuries. Bigbey sued Devon, Tite Water, and Wild Willy's for negligence, gross negligence, and premises liability.
Bigbey also named as defendants Devon's other contractors, Bedrock Petroleum Consultants, LLC and Baker Hughes.
Wild Willy's sought to obtain defense and indemnification from Tite Water for Bigbey's claims under the Master Service and Supply Agreement for Exploration and Production between Devon and Tite Water ("MSSA"). After its efforts proved unsuccessful, Wild Willy's filed crossclaims against Tite Water for breach of the MSSA and declaratory judgment.
Under the terms of the MSSA, governed by Oklahoma law, Tite Water, as Devon's contractor, is required to defend and indemnify members of the "Company Group" from and against all claims, loses, damages, suits, and liabilities of every kind and character for "injuries to or illness or death of member of Contractor Group." Section 29.3 of the MSSA defines the term "Company Group" as, among other things, "agents, contractors, [and] consultants" of Devon. Section 11.5(a) states:
If for any reason the Defending Party does not provide indemnity or defense required by this Agreement, then the duty of defense will also extend to payment of the Indemnified Party's costs and expenses of defense, including costs and expenses associated with the recovery of the indemnified Party's claim for defense, insurance, or indemnity.
Wild Willy's argued that as Devon's "agent," "consultant," or "contractor," it is a member of the "Company Group" and thus entitled to defense and indemnification from Tite Water under the MSSA.
In its petition, Wild Willy's alleged that, as Devon's "agent," "consultant," and "contractor," it was a third-party beneficiary to the MSSA. Wild Willy's further alleged that Tite Water breached the MSSA by refusing to provide Wild Willy's with defense and indemnification against Bigbey's tort claims after Wild Willy's gave Tite Water notice of its claims and demand for defense and indemnity. According to Wild Willy's, it was "entitled to recover those damages that have resulted naturally and directly from the breach," including its attorney's fees and costs. Wild Willy's also asked the trial court to declare that Tite Water owed Wild Willy's defense and indemnity under the terms of the MSSA, Tite Water breached the MSSA by failing to defend and indemnify Wild Willy's against Bigbey's tort claims, and Wild Willy's is entitled to recover its damages from Tite Water, including attorney's fees.
The trial court bifurcated Wild Willy's crossclaims against Tite Water for defense and indemnification from Bigbey's tort claims. After trial commenced on Bigbey's claims, the trial court granted summary judgment in favor of Wild Willy's.Bigbey settled his claims with the remaining defendants during trial.
Neither Wild Willy's motion for summary judgment nor the trial court's ruling on the motion is in the record. In the Motion for Entry of Final Judgment on the Verdict filed by Wild Willy's in this case, Wild Willy's stated that the trial court granted its motion for summary judgment "on Wild Willy's' affirmative defense that Will Davidson was Devon's 'borrowed servant,'" resulting in dismissal of Bigbey's claims against Wild Willy's and Bedrock.
Trial on Wild Willy's Crossclaims
Wild Willy's crossclaims for defense and indemnification against Tite Water proceeded to a jury trial. Tite Water stipulated that Bigbey was a member of the "Contractor Group," and Wild Willy's conceded that it was not Devon's "contractor." Thus, the only issue left for the jury decide was whether Wild Willy's was Devon's agent or consultant, and therefore a member of the "Company Group" under the MSSA.
A. Liability under the MSSA
During its opening argument, Wild Willy's informed the jury that the only issue with respect to Tite Water's liability was whether Wild Willy's was acting as Devon's agent or contractor when Bigbey was injured. Wild Willy's counsel told the jury that "one definition of agent is one who is authorized to act for or in place of another, a representative" and the key question the jury had to answer was whether Wild Willy's acted "for the benefit of Devon, subject to Devon's control" when Bigbey was injured. According to Wild Willy's, Will Davidson, the owner, president, and sole member of Wild Willy's, would testify that he was "authorized to act for Devon subject to [its] control," and that was the "classic" definition of an agent. Wild Willy's argued that Davidson was also Devon's consultant and the dictionary meaning of consultant is "someone who advises people on a particular subject." Wild Willy's further argued that while Davidson may not describe himself as a consultant, he nevertheless meets the definition of a consultant because Davidson "advised Devon on the saltwater injection" well.
In its opening argument, Tite Water argued that Devon had three contractors working at the saltwater facility: Tite Water, Baker Hughes, and Bedrock Petroleum Consultants, LLC. Wild Willy's was Bedrock's subcontractor and independent contractor. Tite Water told the jury that Wild Willy's was not Devon's consultant because Davidson, testified he did not consider himself to be a consultant. According to Tite Water, Davidson considered himself to be an independent contractor and Devon's subcontractor, and Davidson would testify that while Devon assigned him general tasks to perform, Devon did not dictate the method, means, or manner by which Davidson carried out these tasks. Tite Water's position was that Davidson was "an independent contractor and not an agent or a consultant."
During trial, Wild Willy's and Tite Water presented evidence on whether Wild Willy's was Devon's agent or consultant when Bigbey was injured during the explosion. Among other evidence presented by Wild Willy's, Davidson testified that while he considered himself to be a flow hand, not a consultant based on his understanding of the word, he also understood from talking to his attorney that the term "consultant" had a different legal meaning. Davidson testified that he was a consultant, as his attorney defined the term. When asked if he was satisfied with the legal services Bradley Arant Boult Cummings LLP provided to him in this case, Davidson testified:
Because Tite Water is not challenging the sufficiency of the evidence supporting the jury's findings that Wild Willy's was Devon's agent and consultant, we need not discuss in further detail the testimony and evidence presented on this issue.
Davidson was working as a flow hand at Devon's plan when the explosion occurred.
Man, I was-you know, I-I can't put into words the feeling of relief walking out of there when, you know, Devon-you know, they said that I was their agent [during the trial on Bigbey's tort claims.]
B. Evidence of Damages
Wild Willy's and Tite Water presented conflicting expert testimony regarding the amount of Wild Willy's alleged damages, including the amount of reasonable attorney's fees and costs incurred by Wild Willy's in defending against Bigbey's claims and prosecuting its defense and indemnification claims against Tite Water. In support of its request for $1,171,697.50 in attorney's fees and $156,341.49 in costs as damages, Wild Willy's presented testimony from its attorney's fees expert Justin Scott and invoices reflecting hours billed, billing rates, and task descriptions. With the exception of the July 2019 invoice, all other invoices for attorney's fees and costs were attached to the two demand letters Wild Willy's sent to Tite Water in May 2019 and July 2019.
Scott testified that the $1,171,679.50 in legal fees and $156,341.49 in costs charged by his law firm Bradley Arant Boult Cummings LLP were reasonable and necessary to defend Wild Willy's against Bigbey's claims and to prosecute Wild Willy's crossclaims against Tite Water. Scott's opinion was based on his review on the invoices, his knowledge of the work done, and his analysis of the Arthur Anderson factors. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (stating non-exclusive factors include time and labor required, likelihood that acceptance of employment precluded other employment, fee customarily charged for similar services, amount involved, results obtained, and expertise, reputation, and ability of lawyers performing services).
Scott testified that the underlying lawsuit was a complex, multi-party, high stakes, oil field personal injury case that he and his firm had worked on in defense of Wild Willy's for almost two and a half years. During the course of the litigation, Bigbey and the five defendants retained at least fifteen experts with technical and medical expertise to opine on a range of issues, including the cause of the explosion and fire that injured Bigbey and the extent of Bigbey's injuries and medical treatment. The extensive document production in the case included thousands of pages chronicling Bigbey's ongoing medical treatment.
Wild Willy's hired an expert to testify on the cause and origin of the fire that injured Bigbey and a second expert to testify regarding oil field operations and contractor relationships in the oil and gas industry.
Scott testified that the legal services he and his law firm provided to Wild Willy's on this complex case included:
Analysis of the allegations in [Bigbey's lawsuit and Wild Willy's claims against Tite Water for defense and indemnity], reviewing pleadings that the parties filed, looking at parties' discovery responses, including tens of thousands of pages of documents that were produced, talking to witnesses, and then taking that knowledge and that analysis and turning that into written work product, whether that is motions that were filed with the court, the strategies that we took in questioning that we did at depositions of this matter, and then eventually preparing a trial strategy that as the members of the jury heard resulted in a summary judgment that the Court granted in Wild Willy's favor such that Wild Willy's in this matter had no liability.
According to Scott, there were at least twenty-five depositions of fact witnesses and experts, as well as two unsuccessful mediations. The case also involved extensive travel because the explosion and fire occurred in Oklahoma, many of the eyewitnesses were located in Oklahoma, and several depositions took place in Oklahoma.
According to Scott, Wild Willy's and the four other defendants faced $720 million in potential liability on Bigbey's tort claims against them. Scott testified that his firm ultimately secured one of its primary objectives, which was "the finding of zero liability" for Wild Willy's.
With respect to the expertise and ability of the attorneys and legal staff performing these services, Scott testified that he has twelve years of litigation experience providing legal services in cases such as this, and his law partner has two decades of experience litigating oil field personal injury cases. The firm's associates and paralegals also have extensive experience working on these types of cases.
With respect to the fees customarily charged for similar services, Scott testified that he is familiar with the rates customarily charged in Harris County, Texas for the type of legal services he and his law firm provided to Wild Willy's in this case. Although Scott and his law partner normally charge $600 an hour, they billed Wild Willy's at a discounted rate of $375 an hour, which is less than the amount customarily charged in Harris County for similar legal services. According to Scott, he and his law partner worked 1,999 hours on this case at the discounted rate of $375 an hour, their firm's paralegals worked 606 hours at a rate of $200 an hour, and the firm's associates worked the remainder of the billable hours at $325 an hour. Scott testified that the hourly rates charged for the associates and paralegals are below the rates customarily charged by attorneys and paralegals with comparable experience in Harris County providing similar legal services. Scott also testified that his firm's representation of Wild Willy's prevented the firm from accepting other legal work during the two-year period they worked on the case.
With respect to costs, Scott testified that the $156,341.49 in incurred costs included expert witness fees for the two experts Wild Willy's retained, mediation expenses, and travel expenses associated with depositions, witness interviews, and site inspections in Oklahoma.
Wild Willy's hired an expert on cause and origin of the fire, and another expert on oil field operations and contractor relationships.
Based on his experience and prior work on appeals, Scott offered similar testimony regarding Wild Willy's estimated appellate attorney's fees. Scott, who testified he had handled at least five appeals, including two pending before the courts of appeal, testified that the amount of reasonable appellate attorney's fees was $50,000.00 for an appeal to the court of appeals, $50,000.00 for the petition for review stage in the Texas Supreme Court, $50,000.00 for the merits briefing stage in the Texas Supreme Court, and $50,000.00 for oral argument and completion of Texas Supreme Court proceedings.
Tite Water's attorney and its attorney's fees expert, George Jackson, testified that he is familiar with the rates customarily charged in Harris County for the type of legal services Scott's law firm provided to Wild Willy's. Jackson testified that a reasonable rate for a partner working on a similar case in Harris County is $195 an hour, a reasonable rate for an associate is $175 an hour, and reasonable rate for a paralegal is $85 an hour. Jackson further testified that "based upon [his experience and the reasonable rates customarily charged in Harris County] and based upon the [Arthur Anderson] factors that Mr. Scott discussed earlier, it is my testimony that a reasonable range or reasonable area that should have been charged in this case would have been approximately $300,000 to $350,000" plus $75,000 in costs and expenses. Jackson also testified that based on his experience as an appellate practitioner, a reasonable rate customarily charged in the Harris County area for representation at each level of the appellate process is $15,000.
Jackson did not provide any other specific testimony, aside from his background and experience and the reasonable rates he testified are charged in Harris County for similar services.
C. The Jury Charge
The trial court submitted two questions to the jury. Jury Question 1 and 2 stated in pertinent part:
QUESTION NO. 1
Was Wild Willy's Welding, LLC an agent, contractor, or consultant of Devon Energy Production Corporation, L.P. on July 18, 2018?
You should interpret the words of the contract in their ordinary and popular sense, unless you decide that the parties used them in some other sense.
An "agent" is one who is authorized to act for or in place of another, a representative.
A "consultant" is someone who advises people on a particular subject.
A "contractor" is one who covenants to do anything for another; one who contracts to perform work on a rather large scale at a certain price or rate; one who undertakes to do work for a company or corporation on a large scale at a certain fixed price.
Answer "Yes" or "No" for each of the following:
a. Agent __
b. Contractor __
c. Consultant __
QUESTION NO. 2
What is a reasonable fee for the necessary services of Wild Willy's Welding, LLC's attorneys for the defense of Wild Willy's Welding, LLC against Colby Bigbey's claims and Wild Willy's Welding, LLCs claim for indemnity and defense against Tite Water Energy, LLC?
A reasonable fee is the reasonable hours worked, and to be worked, multiplied by a reasonable hourly rate for that work.
Do not include fees that relate solely to any other claim.
Factors to consider in determining a reasonable fee include
1. the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal services 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;
8. whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.
Answer with an amount in dollars and cents for each of the following:
a. For representation in the trial court.
ANSWER: $___
b. For representation in the court of appeals.
ANSWER: $___
c. For representation at the petition for review state in the Supreme Court of Texas.
ANSWER: $___
d. For representation at the merits briefing stage in the Supreme Court of Texas.
ANSWER: $___
e. For representation through oral argument at the completion of proceedings in the Supreme Court of Texas.
ANSWER: $___
During its closing arguments, Wild Willy's argued that, based on the definitions included in Jury Question 1, Davidson was Devon's agent and its consultant. According to Wild Willy's, the evidence established that (1) Davidson was Devon's agent because Davidson was acting on Devon's behalf and under Devon's control when Bigbey was injured, and (2) Davidson was Devon's consultant because he provided advice to Devon regarding the saltwater injection well.
During its closing argument, Tite Water argued that Davidson was an independent contractor, not Devon's consultant, because Davidson repeatedly denied being a consultant. With respect to whether Davidson was Devon's agent, Tite Water argued that Bedrock hired Wild Willy's to work at the saltwater injection plant where Bigbey was injured as Bedrock's independent contractor and consultant and Wild Willy's agreement with Bedrock states that a consultant is not considered "Bedrock's employee[], agent, servant, or representative."
The jury deliberated and found Wild Willy's was Devon's "agent" and "consultant." The jury also found that $1,328,020.99 was a reasonable fee for the necessary services Wild Willy's legal counsel had provided at the trial level and $35,000 was a reasonable fee for the necessary services to be provided at each level of the appellate process.
The trial court rendered judgment on the jury's verdict in favor of Wild Willy's on its claims against Tite Water for breach of contract and declaratory judgment. In its judgment, the trial court decreed that Tite Water owed Wild Willy's defense and indemnity under the terms of the MSSA, Tite Water breached the MSSA by failing to defend and indemnify Wild Willy's, and Wild Willy's was "entitled to damages arising out of this action as set forth herein, including but not limited to attorney's fees and costs incurred to date." Based on the jury's findings, the trial court awarded Wild Willy's:
a. $1,328,020.99 for reasonable and necessary legal fees and costs for representation in the trial court.
b. $35,000.00 for reasonable and necessary legal fees and costs for representation in the court of appeals.
c. $35,000.00 for reasonable and necessary legal fees and costs for representation at the petition for review stage in the Supreme Court of Texas.
d. $35,000.00 for reasonable and necessary legal fees and costs for representation at the merits briefing stage in the Supreme Court of Texas.
e. $35,000.00 for reasonable and necessary legal fees and costs for representation through oral argument and the completion of proceedings in the Supreme Court of Texas.
The trial court also awarded Wild Willy's "[p]ost judgment interest on all of the above at the rate of 5% compounded annually from the date this judgment is rendered until all amounts are paid in full."
Tite Water filed a "Motion for Judgment Notwithstanding the Verdict, or in the alternative, Motion for New Trial, or in the alternative, Motion to Modify the Judgment" ("Post-Judgment Motion") arguing the trial court abused its discretion by defining "agent" and "consultant" in Jury Question 1, and there was legally and factually insufficient evidence supporting the jury's award of attorney's fees and costs to Wild Willy's. The trial court denied the motion. This appeal followed.
We address Tite Water's first, third, and fourth issues below.
In its second issue, Tite Water argues the trial court abused its discretion by submitting Jury Question 1 because the question included definitions for the commonly understood words "agent" and "consultant." Tite Water argues that the inclusion of these "superfluous" definitions was "unnecessary and harmful" because it prevented the jury from interpreting the terms in their ordinary or popular sense, prevented Tite Water from arguing to the jury that they should interpret these terms in their ordinary or popular sense, and it "steered" the jury towards a finding that Wild Willy's was Devon's agent and consultant. Tite Water further contends that the inclusion of these definitions was harmful because the only "contested, critical issue" at trial with respect to Tite Water's liability was whether Wild Willy's was Devon's "agent" or "consultant."
A. Standard of Review and Applicable Law
We review a trial court's decision to include or refuse instructions and definitions in the jury charge for an abuse of discretion. See Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). If we determine the trial court abused its discretion by defining a term in the jury charge, we must then review the entire record to determine if that error was harmful. See Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001). An error is harmful if it "probably caused the rendition of an improper judgment" or "probably prevented the appellant from properly presenting the case to the court of appeals." Tex.R.App.P. 44.1(a). The inclusion of an improper definition is "especially likely to cause an unfair trial when the trial is contested and the evidence sharply conflicting." Quantum Chem. Corp., 47 S.W.3d at 480; see also Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009) ("Charge error is generally considered harmful if it relates to a contested, critical issue."). When a trial court defines a commonly understood term in a charge, the inclusion of the definition is considered harmful if the definition is "confusing and misleading" and could cause the jury to interpret the term differently from the word's ordinary meaning. Allen v. Allen, 966 S.W.2d 658, 661 (Tex. App.-San Antonio 1998, pet. denied) (holding inclusion in jury charge of "confusing and misleading" definition of commonly used word was harmful).
Trial courts are required to "submit such instructions and definitions as shall be proper to enable the jury to render a verdict." Tex.R.Civ.P. 277. A definition is proper if it "(1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence." Hawley, 284 S.W.3d at 855-56. While trial courts must provide the jury with definitions of undefined words or phrases used in a contract that have a legal or technical meaning, trial courts are not required to define "words of ordinary meaning, readily understandable by the average person." Allen, 966 S.W.2d at 660; see also Seger v. Yorkshire Ins. Co., Ltd., 503 S.W.3d 388, 408 (Tex. 2016) ("While trial courts have wide discretion in determining the necessity of explanatory instructions and definitions in the jury charge, the trial court must give definitions of legal and other technical terms.").
B. Analysis
Tite Water and Wild Willy's submitted proposed jury instructions, definitions, and questions. Wild Willy's proposed Jury Question 1 included the same definitions of "agent" and "consultant" included in the trial court's final charge, along with citations to Black's Law Dictionary and Oklahoma case law. Tite Water's proposed Jury Question 1 did not include any definitions for the terms "agent" or "consultant." During the charge conference, Tite Water objected to the trial court's inclusion in Jury Question 1 of Wild Willy's proposed definitions of "agent" and "consultant." Tite Water's counsel argued:
Wild Willy's pleaded it was a member of the "Company Group," and therefore entitled to defense and indemnity for Bigbey's tort claims, because it was Devon's "agent," "consultant," and "contractor." Although Wild Willy's' proposed Jury Question 1 included a definition for "contractor," Wild Willy's conceded during closing arguments that it was not Devon's "contractor," asking the jury to find instead find that it was Devon's "agent" or "consultant."
We would object to that definition because already in the question is the direction that the jury, you should interpret the words "the contract" in their ordinary and popular sense unless you decide that the parties use them in some other sense.
And I think that that's kind of a critical distinction there, Your Honor, because-and I would make the same objections as to the definition of "consultant" and "contractor." We don't think that these definitions need to be in the jury charge. We think that the-that the jury can
interpret the words of the contract in their ordinary and popular sense. There's no indication that the parties use them in some other sense.
We think that the jury should be allowed to come to the conclusion with respect to those-those items on their own, and we would object to having the definitions of "agent," "consultant," and "contractor" under Question Number 1, and ask that they be removed.
We would move that they be removed from Question Number 1.
The trial court overruled Tite Water's objections to the inclusion of "agent," "consultant," and "contractor" in Jury Question 1 and included the definitions in the charge.
Assuming, without deciding, that the trial court abused its discretion by defining "agent" and "consultant" in Jury Question 1, we cannot reverse on this basis unless Tite Water was harmed by the error. See Tex. R. App. P. 44.1(a)(1)-(2) (stating court of appeals cannot reverse trial court's judgment unless trial court's error "probably caused the rendition of an improper judgment" or "probably prevented the appellant from properly presenting the case to the court of appeals").
Tite Water argues it was harmed by the trial court's decision to define the commonly understood terms "agent" and "consultant" in Jury Question 1 because the definitions "steered the jury toward a finding in favor" of Wild Willy's and required the jury to apply the trial court's definitions, as opposed to "utilize[ing] its own common sense to reach a conclusion on whether Wild Willy's acted as an agent or as a consultant." Tite Water further argues that inclusion of these definitions harmed its ability to try its case because it prevented it "from arguing the jury should "interpret the words of the contract in their ordinary and popular sense, unless you decide that the parties used them in some other sense."
Under Texas and Oklahoma law, undefined contract terms are given "their plain and ordinary meaning unless the instrument indicates the parties intended a different meaning." Dynegy Midstream Servs., Ltd. P'ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009); see also Serra v. Est. of Broughton, 2015 OK 82, ¶ 10, 364 P.3d 637, 641 ("An undefined policy term should be given its plain and ordinary meaning."). The MSSA is governed by Oklahoma law. Oklahoma courts, like Texas courts, routinely look to dictionaries and other court opinions to determine the plain and ordinary meaning of undefined contract terms. See Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471, 480 (Tex. 2019) (relying on Black's Law Dictionary for plain, ordinary, and generally accepted meaning of undefined contract term); Tex. State Bd. of Exam'rs of Marriage and Fam. Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 35 (Tex. 2017) (stating when determining undefined term's common, ordinary meaning, courts "typically look first to their dictionary definitions and then consider the term's usage in other statutes, court decisions, and similar authorities"); see also U.S. Bank, N.A. ex rel. Credit Suisse First Boston Heat 2005-4 v. Alexander, 2012 OK 43, 280 P.3d 936, 942 n.12 (citing Black's Law Dictionary for definition of "agent"); see CPT Asset Backed Certificates, Series 2004-EC1 v. Cin Kham, 2012 OK 22, 278 P.3d 586, 592 n.22 (same).
The definitions of "agent" and "consultant" the trial court included in Jury Question 1 are based on dictionary definitions and Oklahoma court opinions. For example, in defining "agent," the trial court relied on Oklahoma court opinions that define the term "agent" based on Black's Law Dictionary. Similar to the definition of "agent" the trial court used in Jury Question 1, "Black's Law Dictionary defines 'agent' as '[o]ne who is authorized to act for or in place of another; a representative." See Alexander, 280 P.3d at 942 n.12 (quoting Black's Law Dictionary (9th ed. 2009)); see also CPT Asset Backed Certificates, 278 P.3d at 592 n.22 (same). And the definition the trial court used for "consultant" in Jury Question 1 was taken from Cambridge Dictionary, which defines "consultant" as "someone who advises people on a particular subject." During the charge conference, Tite Water did not object to the substance of the definitions or offer alternative definitions. Rather, Tite Water argued that it was improper to define "agent" and "consultant" at all because the charge also instructed the jury to interpret words in the MSSA in their "ordinary and popular sense, unless you decide that the parties used them in some other sense," and jurors thus should be allowed to define "agent" and "consultant."
Tite Water argues the trial court erred by relying on these Oklahoma opinions because none of the opinions "have anything to do with whether someone was an agent or a consultant." Although the definitions of "agent" included in the Oklahoma opinions are dicta, Wild Willy's and the trial court were relying on these opinions to supply the plain and ordinary meaning of the term "agent." The ultimate holdings in those cases were thus irrelevant for the trial court's and Wild Willy's purposes.
Tite Water does not argue that the trial court's definitions of "agent" and "consultant" included in Jury Question 1 are incorrect statements of the law or inconsistent with the term's plain and ordinary meaning. Nor does Tite Water argue the definitions are "confusing and misleading" potentially causing the jury to interpret the terms differently from their ordinary meaning. Rather, Tite Water argues the jury was not "allowed to interpret the terms in their ordinary or popular sense" and further that the definitions had a "chilling effect" on Tite Water's ability to argue the case. We disagree.
Tite Water's arguments at trial were not focused on the ordinary meaning or popular sense of the terms "agent" or "consultant." Rather, Tite Water argued that Davidson was not Devon's consultant because Davidson repeatedly denied being a consultant and Davidson was not Devon's agent because Wild Willy's was hired as Bedrock's, not Devon's, consultant and independent contractor, and Wild Willy's agreement with Bedrock expressly stated that Wild Willy's was not Bedrock's agent. Nothing in the jury charge or Question No. 1 precluded Wild Willy's from presenting or developing these arguments.
After reviewing the entire record, including Davidson's testimony, and the arguments of counsel, we cannot say that the trial court's inclusion of the dictionary definition of the terms "agent" and "consultant" in Jury Question 1 probably caused the jury to find mistakenly that Wild Willy's was Devon's "agent" or "consultant," and thus caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1) (stating error is harmful if error "probably caused the rendition of an improper judgment"); Allen, 966 S.W.2d at 661 (holding inclusion of definition of term "cohabitate" probably caused rendition of improper judgment because definition was "confusing and misleading, potentially causing a jury to characterize as 'cohabitation' any number of situations falling outside the ordinary meaning of the word"). Tite Water does not argue that the alleged error was harmful because it was prevented from properly presenting its case on appeal, nor do we see how the alleged error could have done so. Tex.R.App.P. 44.1(a)(2) (stating error is harmful if error "probably prevented the appellant from properly presenting the case to the court of appeals").
We overrule Tite Water's second issue.
Tite Water does not challenge the sufficiency of the evidence supporting the jury's findings that Wild Willy's was Devon's "agent" and "consultant."
Attorney's Fees
In its first issue and third issues, Tite Water argues there is legally and factually insufficient evidence supporting the trial court's award of excessive attorney's fees and costs to Wild Willy's and the trial court abused its discretion by awarding appellate attorney's fees not conditioned on Wild Willy's success on appeal. Tite Water argues that if the Court affirms the amount of attorney's fees awarded, the Court should modify the judgment to make each award of appellate attorney's fee contingent upon Wild Willy's prevailing at that step of the appellate process.
In its fourth issue, Tite Water argues the trial court erred or abused its discretion by denying Tite Water's "Motion for Judgment Notwithstanding the Verdict, or in the alternative, Motion for New Trial, or in the alternative, Motion to Modify the Judgment" because there is legally and factually insufficient evidence supporting the jury's awards of trial and appellate attorney's fees and costs to Wild Willy's.
Wild Willy's responds that the trial court did not abuse its discretion by awarding Wild Willy's its attorney's fees and costs because Wild Willy's expert testimony and invoices support the award. Wild Willy's also argues that while the conditional nature of the award of appellate attorney's fees is necessarily implied, this Court can modify the judgment to condition the awards on Wild Willy's success at each stage of the appellate process.
A. Standard of Review
We review a trial court's award of attorney's fees for an abuse of discretion. See Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 850 (Tex. 2018). We review the amount of attorney's fees awarded for legal and factual sufficiency. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). When reviewing the legal sufficiency of the evidence, we consider the evidence before the jury, crediting evidence in support of the verdict if reasonable jurors could, and disregarding evidence contrary to the verdict unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 823, 827 (Tex. 2005). If there is more than a scintilla of evidence to support the finding, the evidence is legally sufficient. See id. at 810.
A challenge to attorney's fees as being excessive is a factual sufficiency challenge to the award. Lerma v. Border Demolition & Envtl., Inc., 459 S.W.3d 695, 705 (Tex. App.-El Paso 2015, pet. denied) (citing Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998)). When reviewing the factual sufficiency of the evidence, we examine all the evidence and set aside a finding only if it is so contrary to the evidence as to be "clearly wrong and unjust." Maritime Overseas Corp., 971 S.W.2d at 407. In conducting our review of both the legal and factual sufficiency of the evidence, we are mindful that the jurors, as fact finders, "are the sole judges of the credibility of the witnesses and the weight to give their testimony," and it is jurors' role to resolve any conflicts in the evidence. City of Keller, 168 S.W.3d at 819-20 (legal sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (factual sufficiency). We must defer to the jurors' determination of these matters and their resolution of conflicting evidence. City of Keller, 168 S.W.3d at 819-20; Golden Eagle Archery, 116 S.W.3d at 761.
B. Applicable Law
"[A] claimant seeking an award of attorney's fees must prove the attorney's reasonable hours worked and reasonable rate by presenting sufficient evidence to support the fee award sought." Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 501-02 (Tex. 2019). Sufficient evidence to support an award of attorney's fees includes, at a minimum, the following evidence: (1) the particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing the services. Id. at 502. The evidence must include details about the work performed. Id. at 505. This calculation, when supported by sufficient evidence, creates a presumption of the reasonable and necessary attorney's fees that can be shifted to the other party. Id. at 499.
To determine the amount of attorney's fees to be awarded, Texas follows the lodestar method, which is a short-hand version of the factors set forth by the Texas Supreme Court in Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997). See Rohrmoos Venture, 578 S.W.3d at 496. The lodestar method requires the fact finder to determine reasonable attorney's fees by first determining the reasonable hours spent by counsel in the case and the reasonable hourly rate for counsel's work. See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012). The fact finder then multiplies the number of hours counsel worked on the case by the applicable rate, the product of which is the base fee or lodestar. Id. It is the fee claimant's burden to provide sufficient evidence of both the reasonable hours worked and the reasonable hourly rate. Rohrmoos Venture, 578 S.W.3d at 498. Non-exclusive factors courts consider in determining the amount of attorney's fees to be awarded, as set forth in Arthur Andersen, include (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, 945 S.W.2d at 818.
C. Sufficiency of the Evidence Supporting Award of Attorney's Fees and Expenses
In its third issue, Tite Water argues there is legally and factually insufficient evidence supporting the amount of attorney's fees and costs awarded to Wild Willy's because the invoices documenting Wild Willy's legal services are so "heavily redacted" they provided no guidance to the jury with respect to the reasonableness and necessity of the work performed. Wild Willy's responds that its attorney, Scott, and the invoices corroborating his testimony, provided legally and factually sufficient evidence supporting the amount of attorney's fees and costs awarded.
In support of its request for $1,171,697.50 in attorney's fees and $156,341.49 in costs as damages, Wild Willy's presented testimony from its attorney's fees expert Scott and invoices showing hours billed, billing rates, and task descriptions. With respect to the reasonableness and necessity of these fees, Scott identified some of the non-exclusive factors courts consider when assessing the amount of reasonable and necessary attorney's fees as set forth in Arthur Andersen, and he applied those factors to this case. See Arthur Andersen, 945 S.W.2d at 818 (stating non-exclusive factors include time and labor required, likelihood that acceptance of employment precluded other employment, fee customarily charged for similar services, amount involved, results obtained, and expertise, reputation, and ability of lawyers performing services).
We note that the attorney's fees awarded to Wild Willy's in this case were awarded as damages, and neither party argues the award should be reviewed differently.
Scott testified that the billing rates of Wild Willy's attorney's and paralegals' are reasonable based on the experience, reputation, and ability of the attorneys and paralegals and their rates are below the hourly fees customarily charged in Harris County for the type of work the attorney's and paralegals performed in this case.
Scott also testified regarding the complexity and scope of Bigbey's lawsuit against Wild Willy's and four other defendants and he also provided sufficient detail regarding the type of services provided on a case such as this, which involves over two dozen depositions, two mediations, fifteen expert witnesses, and tens of thousands of pages of discovery, including thousands of medical records documenting Bigbey's injuries and ongoing medical treatment. Scott also testified that Wild Willy's and the four other defendants faced $720 million in potential liability on Bigbey's tort claims against them and Scott and his firm were able to secure a finding from the trial court that Wild Willy's did not have any liability with respect to Bigbey. According to Scott, he and his firm worked on this case for over two years and provided approximately 4,000 hours of legal services to Wild Willy's which precluded his firm from accepting additional work during the course of the litigation.
The invoices admitted into evidence corroborate Scott's testimony and reflect the hours billed, the attorney or paralegal who performed the legal work, their billing rates, and includes a description of the work performed. See Rohrmoos Venture, 578 S.W.3d at 502 (stating legally sufficient evidence of attorney's fees includes evidence of particular services performed, when they were performed, who performed such services, and reasonable hourly rate for person performing services, along with some details regarding work performed). While many of Wild Willy's invoices are extensively redacted, the invoices, coupled with Scott's more detailed testimony regarding the legal services his law firm provided to Wild Willy's, provided sufficient information to allow the jury meaningfully to assess the reasonableness and necessity of the legal services. See generally Person v. MC-Simponsville, SC-1-UT, LLC, No. 03-20-00560-CV, 2021 WL 3816332, at *9 (Tex. App.-Austin Aug. 27, 2021, no pet.) (mem. op.) (holding evidence was legally insufficient to support award of attorney's fees because billing records were so heavily redacted, and expert's testimony was too general, to allow trial court to determine whether legal services were reasonable and necessary).
Tite Water's reliance on the testimony of its expert, Jackson, is misplaced. Jackson testified that the billing rates of Wild Willy's attorneys and paralegals were higher than rates customarily charged in Harris County for the legal services provided, and that a reasonable amount for representation at trial was between $300,000 and $350,000 plus $75,000 in costs. He further testified that a reasonable amount for representation at each stage of the appellate process was $15,000. However, it was the jurors' prerogative, as the sole fact finders, to assess Scott's and Jackson's credibility, the weight to give their testimony, and resolve any conflicts in the evidence. See City of Keller, 168 S.W.3d at 819-20; Golden Eagle Archery, 116 S.W.3d at 761. The record indicates that the jurors, who awarded Wild Willy's the full amount of attorney's fees and costs requested for the trial level and awarded Wild Willy's $15,000 less in attorney's fees than the amount requested for each stage of appeal, resolved the conflict in Scott's and Jackson's testimony with respect to trial attorney's fees and costs in Scott's favor, but credited Jackson's testimony regarding the amount of appellate attorney's fees by awarding Wild Willy's less than the amount they requested. We must defer to the jurors' resolution of the conflicting evidence. See City of Keller, 168 S.W.3d at 819-20; Golden Eagle Archery, 116 S.W.3d at 761.
After considering the evidence before the jury, crediting evidence in support of the verdict if reasonable jurors could, and disregarding evidence contrary to the verdict unless reasonable jurors could not, we conclude there is more than a scintilla of evidence supporting the amount of the jury's awards of attorney's fees and costs to Wild Willy's. See City of Keller, 168 S.W.3d at 819, 823, 827. After examining all of the evidence before the jury, we conclude that the jury's findings regarding the amount of reasonable and necessary attorney's fees and costs is not so contrary to the evidence as to be clearly wrong and unjust. See Maritime Overseas Corp., 971 S.W.2d at 407.
We overrule Tite Water's third issue.
D. Appellate Attorney's Fees
In its first issue, Tite Water argues the trial court erred by not predicating the portion of the jury verdict awarding appellate fees based on Wild Willy's success on appeal. Tite Water requests that we modify the judgment to make the awards of appellate attorney's fees contingent upon Wild Willy's success at each stage of the appellate process. Wild Willy's agrees the modification is the appropriate remedy.
Trial courts do not have discretion to "award appellate attorney's fees that are not conditioned on the party's failure to obtain relief." In re Ford Motor Co., 988 S.W.2d 714, 722 (Tex. 1998) (orig. proceeding); see also Siegler v. Williams, 658 S.W.2d 236, 241 (Tex. App.-Houston [1st Dist.] 1983, no writ) (stating "a trial court may not penalize a party for taking a successful appeal by taxing him with attorney's fees if he takes such action"). An award of appellate attorney's fees must be conditioned upon the appellant's unsuccessful appeal. In re Ford Motor Co., 988 S.W.2d at 722; see also Hoefker v. Elgohary, 248 S.W.3d 326, 332 (Tex. App.- Houston [1st Dist.] 2007, no pet.). Although the trial court abused its discretion by awarding Wild Willy's unconditional appellate attorney's fees, we need not reverse the trial court's judgment on this basis. See Hoefker, 248 S.W.3d at 332. Rather, the proper remedy for such an abuse of discretion is to "modify the judgment and to make the award contingent upon the receiving party's success on appeal." Id.
We sustain Tite Water's first issue and modify the trial court's judgment to order that each award of appellate attorney's fees is contingent upon Wild Willy's success at that stage of the appellate process.
E. Tite Water's Post-Judgment Motion
In its fourth issue, Tite Water argues the trial court erred or abused its discretion by denying Tite Water's "Motion for Judgment Notwithstanding the Verdict, or in the alternative, Motion for New Trial, or in the alternative, Motion to Modify the Judgment" because there is legally and factually insufficient evidence supporting the jury's awards of trial and appellate attorney's fees and costs to Wild Willy's. Regardless of its title, Tite Water's post-judgment motion is effectively a motion to disregard the jury's answers to a "vital fact issue." Republic Petroleum LLC v. Dynamic Offshore Res. NS LLC, 474 S.W.3d 424, 429 (Tex. App.-Houston [1st Dist.] 2015, pet. denied) (stating "it is not the title of the post-trial motion that governs the standard of review; rather, it is the relief requested and the substance of the challenge presented"). We review a motion to disregard jury findings using a legal sufficiency standard. See id. (citing City of Keller, 168 S.W.3d at 822).
Having previously determined that the jury's award of trial and appellate attorney's fees and costs to Wild Willy's is supported by legally sufficient evidence, we hold the trial court did not err by denying Tite Water's post-judgment motion. See id.
We overrule Tite Water's fourth issue.
F. Attorney's Fees - Conclusion
We overrule Tite Water's third issue challenging the sufficiency of the evidence supporting the amount attorney's fees and costs awarded to Wild Willy's and because there is sufficient evidence supporting the amount of the award, we overrule Tite Water's fourth issue challenging the denial of its post-judgment motion. We sustain Tite Water's first issue challenging the unconditional award of appellate attorney's fees and modify the trial court's judgment to order that each award of appellate attorney's fees is contingent upon Wild Willy's success at that stage of the appellate process.
Conclusion
We modify the trial court's judgment to order that each award of appellate attorney's fees is contingent upon Wild Willy's success at that stage of the appellate process. We affirm the trial court's judgment as modified.