Letter,Correspondence: VIRGINIA O. KINSEL, ET AL (RESTYLED PER ORDER 7/16/2020) vs ALICE LINDSEY PEACOCK, ET AL

On September 09, 2008 a Letter,Correspondence was filed involving a dispute between and for OTHER CIVIL, TEMP RESTRAINING ORDER/INJUNCTION in the District Court of Tarrant County.

Preview
KELLY~ HART
M\RSHALL M. SEARCY, JR. TELEPHONE: (817) 878-3512
Marshai/.Searcy@kellyhart.com FAX: (817) 878-9280

March 6, 2013

Via Hand Delivery

The Honorable Susan McCoy --i .....,
153rct Judicial District Court :::c = --<
_0_,_
o-
..... :r-·
;:;J
Tarrant County Justice Center >
::!!:
:;:o
~>
401
Fort
W. Belknap
Worth, Texas
Street,
76196
ih Floor ~Ul
~>
:0
I
(1\
--
):>.,
:::;,
f1l
<>'
r--.:: -o "~
0 '-'
;"Tl::: :X:
c
Re: Cause No. 153-232668-08
:;o
::>207 Amicus Curiae Texas Association of Business.

I 02 Costs Justice MEDINA delivered the opinion of the Court.
I 021X Taxation In thisappeal, we consider the calculation of an
I 02k207 k. Evidence as to items.Most Cited attorney's fee award in an employment discrimination
and retaliationsuit brought pursuant to the Texas
Commission on Human Rights Act (TCHRA). The
When applying for a fee under the lodestar TCHRA includes a fee-shifting provision that allows a
method, the applicant must provide sufficient details prevailing party to recover reasonable attorney's fees
of the work performed before the court can make a as part of *759 the costs of pursuing the claim. To
meaningful review of the fee request; for the purposes calculate attorney's fees under the TCHRA, Texas
of lodestar calculations, thisevidence includes, at a courts utilize the lodestar method, that is, the number
minimum, documentation of the services performed, of hours worked multiplied by the prevailing hourly
who performed them and at what hourly rate, when rates. Ifthe lodestar does not reflect a reasonable fee, a
they were performed, and how much time the work multiplier may be applied. In this case, the court of
required. appeals affirmed an attorney's feeaward, applying a
multiplier that doubled the base lodestar amount. 324
111 Costs 102 €::::>!94.18 S.W.3d 181 (Tex.App.-El Paso 2010).

I 02 Costs The employer presents two issues. First, it claims
102VIIl Attorney Fees that the affidavits used to support the feeapplication
I 02k !94. I 8 k.
Items and amount; hours; rate. were not legally sufficient to support the trial court's
Most Cited Cases determination of the hours expended or a reasonable
hourly rate. Second, the employer argues that the trial
Courts 106 €::::>97(1) court abused itsdiscretion by enhancing the lodestar
with a 2.0 multiplier. Because we agree that the evi-
dence in the trialcourt was insufficientto make a
I 06 Courts lodestar calculation,we reverse the court of appeals'
I 0611 Establishment, Organization, and Procedure judgment and remand to the trialcourt for further
1061l(G) Rules of Decision proceedings consistent with this opinion.
I 06k88 Previous Decisions as Controlling
or as Precedents
I 06k97 Decisions of United States I
Myriam Olivas, an Applebee's restaurant man-
Courts as Authority in State Courts

370 S.W.3d 757, 115 Fair Empi.Prac.Cas. (BNA) 510,55 Tex. Sup. Ct. J. 954
(Cite as: 370 S.W.3d 757)

ager in El Paso, filed suitagainst her employer, El On appeal, El Apple argued that the attorney's
Apple I, Ltd., alleging sex discrimination and retalia- fees awarded through trial was an abuse of discretion
tion under the TCHRA. TEX. LAB. CODE §§ because the court did not have sufficient evidence on
21.001-.55. A jury determined that Olivas was not the which *760 to make a reasonable assessment. The
target of sex discrimination, but that her decision to company also complained that no basis existed for the
tile discrimination complaints against her employer trial court's enhancement of the lodestar. The court of
was a motivating factor in El Apple's creation of a appeals vacated the award of Olivas's back-pay dam-
hostile work environment. Thus, Olivas prevailed on ages but otherwise affirmed Olivas's compensatory
only the retaliationclaim. The trialcourt rendered damages and attorney's fees. 324 S.W.3d at 195. The
judgment awarding Olivas compensatory damages of court held that the affidavits were legally sufficient to
$1,700 for back pay, $75,000 for past compensatory support the trial court'sdetermination of hours spent
damages, and $28,000 for future compensatory losses. and a reasonable hourly rate, and that more detailed
billing records were unnecessary. !d. at 193. The court
As the prevailing party, Olivas also submitted an also determined that the trialcourt had not erred in
application for attorney's fees. In affidavits,her at- enhancing the lodestar because it considered separate
torneys estimated that they collectively spent 850 factors from those it used to determine the lodestar. /d.
hours on the case. Olivas's lead counsel, Daniel at 193 94.
Gonzalez, averred that he spent approximately 700
hours on the case. Her other attorney, Francisco II
Dominguez, averred thathe spent !50 hours in pre- The remedies provided under the TCHRA mirror
paring and trying the case. At a hearing on the fee those available under Title VII of the Civil Rights Act
application, Dominguez subsequently testified that he of 1964, as amended by the Civil Rights Act of 1991.
spent 190 hours, but thathe was not seeking com- Compare Tex. Lab.Code §§ 21.258, 21.2585,
pensation for some of that time because it was dupli- 21.259(a) with 42 U.S.C. §§ 1981 a, 2000e-5(g),
cative of work performed by his co-counsel. 2000e 5(k). One of the TCHRA's purposes is to
harmonize state and federal employment discrimina-
Gonzalez testified that both attorneys' time was tion law. TEX. LAB.CODE § 21.001(1). Although
reasonable and necessary given the nature of the case state procedural rules govern the determination of
and the results obtained. Counsel attributed the num- attorney's fees in a suit brought under state law, Texas
ber of hours on the case to the number of discovery courts have looked to federal law in applying our own
instruments and pleadings, the number of depositions statute,including section 21.259(a) of the TCHRA,
and witness interviews, as well as the quality of rep- which provides for an award of attorney's fees to the
resentation. Both Dominguez and Gonzalez testified prevailing party as part of the costs. See,
e.g., Sw.Bell
that they refrained from taking additional clients be- Mobile Sys., Inc. v.Franco, 971 S.W.2d 52. 55 56
cause of the case. (Tex.1998); Burf!mann Seals Am., Inc. v.Cadenhead
135 S.W.3d 854, 86!H\1 CTex.App.-Houston [1st
Dist.J 2004, pet. denied); Elgaghil v. Tarrant Cnty.
Following the fee-application hearing, the trial
court used the lodestar method to calculate attorney's Junior Coil., 45 S.W.3d 133. 144-45 CTex.App.-Fort
fees. The court determined that Gonzalez should be Worth 2000. pet. denied). Because federal courts use
the lodestar method in awarding attorney's fees in
compensated at a rate of $250 per hour for 700 hours
for a total of $175,000, and that his co-counsel Title VII cases, Texas courts have likewise used
lodestar in awarding fees under Section 21.259(a) of
Dominguez should be compensated at a rate of $300
per hour for 190 hours for a total of$57,000. The court the TCHRA. See, e.g., Dillard Dep't Stores, Inc. v.
Gonzales, 72 S.W.3d 398, 412 (Tex.App.-EI Paso
then enhanced the lodestar by applying a 2.0 multi-
2002, pet. denied); W: Telemarketing Corp. Outbound
plier,resulting in $464,000 in attorney'sfees for the
v. McClure, 225 S. W.3d 658, 675 76 (Tex.App.-EI
trialof the case. Legal assistant fees for I 00hours
Paso 2006, pet. granted, judgm't vacated w.r.m.).
were also added to the award at a rate of $65 per hour
for a total of $6,500. The court further awarded
$99,000 in conditional attorney's fees for defending The lodestar method of calculating attorney's fees
post-judgment motions and appeals. first"achieved dominance" in federal class actions.
Gisbrecht v. Barnhart, 535 U.S. 789. 801. 122 S.Ct.

370 S.W.3d 757, 115 Fair Empl.Prac.Cas. (BNA) 510,55 Tex. Sup. Ct. J. 954
(Cite as: 370 S. W.3d 757)

1817. 152 L.Ed.2d 996 (2002). Texas courts similarly (7) the experience, reputation, and abilityof the
adopted lodestar initially
for fee setting in class ac- lawyer or lawyers performing the services; and
tions, and the Texas Legislature subsequently man-
dated the method's use in such cases. See TEX. CIV. (8) whether the fee is fixed or contingent on results
PRAC. & REM.CODE § 26.003(a) (providing that obtained or uncertainty of collection before the legal
"the trialcourt shaJIuse the Lodestar method to cal- services have been rendered.
culate the amount of attorney's fees to be awarded
class counsel").
TEX. DISCIPLINARY R. PROF'L CONDUCT
1.04(bl; see also Arthur Andersen & Co. v. Perry
LWII Under the lodestar method, the determina- Equip. Com., 945 S.W.2d 812, 818 1Tex.J997)
tion of what constitutes a reasonable attorney's fee (quoting the eight-factor testfor determining attor-
involves two steps. First, the court must determine the ney's fees)FNI Our class action rule furtherprovides
reasonable hours spent by counsel in the case and a that any adjustment to the base lodestar "must be in
reasonable hourly rate for such work. Gonzales, 72 the range of 25% to 400% of the lodestar figure."
S. W.3d at 412. The court then multiplies the number TEX.R. CJV. P. 42(i)(l).
of such hours by the applicable rate,the product of
which is the base fee or lodestar. La. Power & Light FNI. Arthur Andersen's eight-factor test is
Co. v. Kellstrom. 50 F.3d 319,323 24 (5th Cir.J995).
similar to the test used by the Fifth Circuit in
The court may then adjust the base lodestar up or Johnson v. Georgia Highway Express. Inc ..
down (apply a multiplier), if relevant factorsindicate 488 F.2d 714, 717-19 (5th Cir.1974l, over-
an adjustment is necessary to reach a reasonable fee in ruled on other grounds by Blanchard v.
the case. Gon:a/es 72 S.W.3d at4!2. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103
L.Ed .2d 67 (! 989).
Our class action rule identifies the relevant factors
when making a lodestar determination by reference to III
Rule 1.04(b), Texas Disciplinary Rules of Profes- illW The award of attorney's fees generally rests
sional Conduct. See TEX.R. CIV. P. 42(i)(!)
in the sound discretion of the trial court. Ragsdale v.
(providing for attorney's fees award in class *761 Progressive Voters Leaf!Ue, 801 S.W.2d 880, 881
actions). The disciplinary rule enumerates the fol- (Tex.J990) (per curiam). But a party applying for an
lowing non-exclusive list of factors: award of attorney's fees under the lodestar method
bears the burden of documenting the hours expended
(I) the time and labor required, the novelty and on the litigation and the value of those hours. Hensley
difficultyof the questions involved, and the skill v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76
requisite to perform the legal service properly; L.Ed.2d 40 (! 983). El Apple submits that a court
cannot calculate the base fee or lodestar without such
(2) the likelihood, if apparent to the client, that the information and thatthe trialcourt here abused its
acceptance of the particular employment will pre- discretion by not requiring the plaintiff toprovide
clude other employment by the lawyer; these details.El Apple furthersubmits that the pre-
vailing party's documentation should preferably be in
(3) the fee customarily charged in the locality for the form of contemporaneous time sheets, which ev-
similar legal services; idence the performance of specific tasks, such that the
trial court can make a reasoned determination of how
much time was reasonably spent pursuing the litiga-
(4) the amount involved and the results obtained;
tion.
(5) the time limitations imposed by the client or by
Olivas responds that Texas Jaw has not required
the circumstances;
detailed billingrecords or other documentation as a
predicate to an attorney's fees award. See, e.g.,Tex.
(6) the nature and length of the professional rela- Commerce Bank, Nat'/ Ass'n v. New. 3 S.W.3d 515,
tionship with the client; 517-18 (Tex.1999) (per curiam) (recognizing attor-
ney's affidavit to be sufficientsupport for award of

370 S.W.3d 757, 115 FairEmpl.Prac.Cas. (BNA) 510,55 Tex. Sup. Ct. J. 954
(Cite as: 370 S.W.3d 757)

fees in default judgment); Save Our Springs Alliance, objective measure of attorney's fees. Gonzales, 72
Inc. v. City of Dripping Springs, 304 S.W.3d 871, S.W.3d at412. It has been criticized,however, for
892-93 fTex.App.-Austin 20 I 0.pet. denied) (ac- providing a financial incentive for counsel to expend
cepting affidavit testimony detailinglegal work and excessive time in unjustified work and for creating a
rates); In re A.B.P. 291 S.W.3d 91 99 disincentive to early settlement. Gen.Motors Corp. v.
(Tex.App.-Dallas 2009, no pet.) (noting that docu- Bloyed, 916 S.W.2d 949. 960 (Tex.1996l(citing Court
mentary evidence is not a prerequisite to an award of Awarded Allorney Fees, 108 F.R.D. 237,246-49 (3d
attorney's fees); Schlager v. Clements. 939 S.W.2d Cir. Task Force 1985)). To avoid these pitfalls, a trial
183, 191-93 (Tex.App.-Houston [14th Dist.] 1996, court should obtain sufficient information to make a
writ denied) (holding that the failure to produce meaningful evaluation ofthe application for attorney's
documentary evidence would affect the weight of an fees. Charges for duplicative, excessive, or inade-
attorney's testimony regarding fees rather than its quately documented work should be excluded. Wat-
admissibility). Olivas submits that our recent decision kins v. Fordice, 7 F.3d 453. 457 (5th Cir.1993). A
in Garcia v. Gomez is consistent*762 with this line of meaningful review of the hours claimed is particularly
authority. 319 S. W.3d 638 (Tex.201 0). important because the usual incentive to charge only
reasonable attorney's fees is absent when fees are paid
Garcia however, is not on point. Itinvolved a by the opposing party. As the U.S. Supreme Court has
statute that required a trial court to dismiss a observed:
health-care liability claim and award attorney's fees to
the defendant health-care provider, on motion, if the Counsel for the prevailing party should make a good
claimant did not timely serve an expert report. The faith effort to exclude from a fee request hours that
claimant did not provide the report, and the trial court are excessive, redundant, or otherwise unnecessary,
dismissed the claim. The court, however, did not just as a lawyer in private practice ethically is ob-
award attorney's fees as the statute required. The ligated to exclude such hours from his fee submis·
health-care provider appealed, but the court of appeals sion. "In the private sector, 'billing judgment' is an
affirmed the judgment, concluding that there was no important component in fee setting.It isno less
evidence of the reasonable attorney's fees incurred by important here. Hours that are not properly billed to
the health-care provider. Id at 641. one's client also are not properly billed to one's
adversary pursuant to statutory authority."
Although the provider's attorney testifiedin the
trialcourt about attorney's fees, appeared on his eli· Hens lev 461 U.S. at 434, I 03S.Ct. 1933 (quot-
ent's behalf, and tiled pleadings in the case, the court ing Copeland v. Marshall, 641 F.2d 880, 891
of appeals concluded no evidence showed that the !D.C.Cir.!980) (en bane)). Wbile Texas courts have
health-care provider had actually incurred attorney's not routinely required billing records or other docu-
fees.!d. We disagreed. We concluded that the statute mentary evidence to substantiate a claim for attorney's
mandated the award of attorney's fees, on motion, and fees, the requirement has merit in contested cases
that the attorney's uncontested, albeit cursory, testi· under the lodestar approach.
mony about his fee, along with the other circum·
stances, was enough to present the issue to the court. The starting point for determining a lodestar fee
!d. award is the number of hours "reasonably expended
on the litigation." !d. at 433,
I 03 S.Ct. 1933. The party
The present case, of course, involves a different applying for the award bears the burden of*763 proof.
statute and a different issue. Unlike Garcia, the ques- !d. at 437 I 03S.Ct. 1933. That proof should include
tion isnot whether the trial court erred in failing to the basic facts underlying the lodestar, which are: (I)
make an award of fees required by statute, but rather the nature of the work, (2) who performed the services
whether the court properly applied the lodestar and theirrate, (3) approximately when the services
method in determining contested attorney's fees. As El were performed, and (4) the number of hours worked.
Apple points out, this Court has not previously re- An attorney could, of course, testilY to these details,
viewed a lodestar award under these circumstances. but in allbut the simplest cases, the attorney would
probably have to refer to some type of record or
The lodestar method aims to provide a relatively documentation to provide this information. Thus,

370 S.W.3d 757, 115 Fair Empl.Prac.Cas. (BNA) 510,55 Tex. Sup. Ct. J. 954
(Cite as: 370 S.W.3d 757)

when there is an expectation that the lodestar method (I} [T]he qualifications of the legal assistant to
will be used to calculatefees, attorneys should doc- perform substantive legal work; (2) that the legal
ument their time much as they would for their own assistant performed substantive legal work under
clients,that is, contemporaneous billingrecords or the direction and supervision of an attorney; (3) the
other documentation recorded reasonably close to the nature of the legalwork performed; (4) the legal
time when the work is performed. assistant's hourly rate; and (5} the number of hours
expended by the legal assistant.
ill In this case, neither attorney indicated how the
890 hours they spent in the aggregate were devoted to All Seasons Window and Door Mfg., Inc. v.Red
any particular taskor category of tasks. Neither at- Dot Com., 181 S.W.3d 490. 504
torney presented time records or other documentary (Tex.App.-Texarkana 2005. no pet.)(quoting Mul-
evidence. Nor did they testifY based on their recollec- ti-Mota Corp. v. ITT Commercial Fin. Corp.. 806
tion of such records. The attorneys instead based their S.W.2d 560, 570 (Tex.App.-Dallas 1990. writ de-
time estimates on generalities such as the amount of nied)). Paralegal fees have been denied absent such
discovery in the case, the number of pleadings filed, proof. Moody v. EMC Servs., Inc.. 828 S.W.2d 237.
the number of witnesses questioned, and the length of 248 (Tex.App.-Houston [14th Dist.] 1992, writ de-
the trial. While all this is relevant, it provides none of nied).
the specificity needed for the trialcourt to make a
meaningful lodestar determination. The court could I2.lWe generally accord considerable deference
not discern from the evidence how many hours each of to a trial court's findings regarding whether prevailing
the tasks required and whether that time was reason- counsel's claimed *764 hours are excessive, redun-
able. Without at leastsome indication of the time dant, or unreasonable. The trialcourt possesses a
spent on various parts of the case, a court has little superior understanding of the case and the factual
basis upon which to conduct a meaningful review of matters involved. But when applying for a fee under
the fee award. the lodestar method, the applicant must provide suf-
ficient details of the work performed before the court
Moreover, if multiple attorneys or other legal can make a meaningful review of the fee request. For
professionals are involved ina case, the fee applica- the purposes of lodestar calculations,this evidence
tion should indicate which attorney performed a par- includes, at a minimum, documentation of the services
ticular task or category of tasks. The application here performed, who performed them and at what hourly
did not provide this information. For instance, the fee rate, when they were performed, and how much time
application details a list of thirty-seven pleadings and the work required.
states that theywere prepared or reviewed by either
Gonzalez or Dominguez. The two attorneys, however, Because the affidavits and other evidence in this
bill atdifferent rates. Without specifYing who per- case did not provide sufficient information for a
formed a task,the information is incomplete. Such lodestar calculation, we must reverse and remand. We
uncertainty diminishes the objectivity that the lodestar are mindful, however, that the attorneys in this case
method aims to provide. may not have contemporaneous billing records that
document theirtime as we have not heretofore ex-
Olivas's attorneys also utilized legal assistants in plained the proof necessary to support a fee applica-
this litigation and were awarded $6,500 for their ser- tion under the lodestar method. Nevertheless, on re-
vices ($65 per hour for I 00 hours of work). While both mand, they should reconstruct their work in the case to
attorneys stated in their affidavits that "[l]egal assis- provide the minimum information the trialcourt re-
tant time was necessarily expended in the prosecution quires to perform a meaningful review of their fee
of [the] case," no evidence was offered to describe the application.
tasks their legal assistants performed, who performed
these services, or their qualifications. When obtaining IV
payment forwork done by paralegals or legalassis- El Apple further complains thatthe trialcourt
tants,Texas courts have required more information, erred in doubling the lodestar to approximate a rea-
such as: sonable attorney's fee in the case. As previously noted,
our class action rule expressly recognizes the multi-

370 S.W.Jd 757, 115 Fair Empl.Prac.Cas. (BNA) 510,55 Tex. Sup. Ct. J. 954
(Cite as: 370 S.W.3d 757)

plier, authorizing the trial court to make attorney fees court experience with lodestar and fee shifting under
awards "in the range of 25% to 400% of the lodestar the similar federal statute. Though not bound to adopt
figure." TEX.R. ClV. P. 42(i)(l).Although that rule the federal standards, Texas courts may appropriately
does not apply here, the lodestar method should not consider them. Cf Williams v. Lara, 52 S.W.3d 171,
vary from claim to claim, that is, the formula should 181 (Tex.2001); B/oyed, 916 S.W.2d at 954 n. I,
be the same in TCHRA suits as in class actions. When
appropriate under the particular circumstances of the We accordingly accept the premise that lodestar
case, a trialcourt may therefore use a multiplier to presumptively produces a reasonable fee, but that
increase or decrease the lodestar figure to approximate exceptional circumstances may justify enhancements
a reasonable fee. to the base lodestar. Whether a multiplier is needed,
however, cannot be determined until the base lodestar
El Apple argues, however, that the trial court is known. Because we do not as yet have a legitimate
abused its discretion in using a 2.0 multiplier in this base lodestar in this case, any comment on the need for
case because no circumstances justify inflating the a multiplier here is premature.
base figure. El Apple contends instead that a multi·
plier should have been used in this case to discount the
** * * **
lodestar because Olivas prevailed only on her retalia·
tion claim, while her fee request presumably included In summary, we hold that the fee application and
the time spent on the discrimination claim as well. proof in this case did not provide the trial court legally
Thus, El Apple submits the time Olivas's attorneys sufficient evidence to calculate a reasonable fee award
spent preparing and trying the discrimination claim using the lodestar method. To establish the number of
should be discounted or excluded from the lodestar hours reasonably spent on the case, the fee application
figure unless she can show that the time spent pursu· and record must include proof documenting the per·
ing the unsuccessful claim advanced her successful formance of specific tasks, the time required for those
claim. tasks, the person who performed the work, and his or
her specific rate. Because the record in this case does
El Apple furtherasserts that the lodestar ispre· not provide these details, we reverse the court of ap·
sumptively a reasonable fee and that enhancements peals' judgment affirming the attorney's fee award and
should be rare and reserved for exceptional cases. remand to the trial court for a redetermination of fees
Perdue v. Kenny A. ex rei.Winn. U.S. - - , 130 consistent with this opinion.
S.Ct. 1662, 1673, 176 L.Ed.2d 494 (2010). E1 Apple
contends that the trial court based its decision to en· Justice HECHT filed a concurring opinion in which
hance the lodestar solely on the contingent nature of Justice WAINWRIGHT and Justice WILLETT
the fee and not on any exceptional aspect of the case. joined.
Moreover, El Apple submits that federal law has ex· Justice HECHT, joined by Justice WAINWRIGHT
pressly rejected the contingent nature of an attorney's and Justice WILLETT, concurring.
representation as a basis forthe lodestar'senhance- I join fullyin the Court's opinion with the addi·
ment. Cia> o(Bur/ington v. Dague. 505 U.S. 557. 567. tiona! observation that, besides lacking supporting
112 S.Ct. 2638. 120 L.Ed.2d 449 (1992). records, Olivas's attorneys' request for fees and the
trial court's award were patently unreasonable.
I1J State procedural rules generally govern the
determination of attorney's fees in a suit brought under After an eight-day trial, the jury failed to find that
a state statute permitting attorney's fees. Although the El Apple discriminated against Olivas on the basis of
TCHRA was enacted to effectuate the policies of Title gender but found that it created a hostile work envi·
VII of the Civil Rights Act of 1964, no indication ronment for her because of her complaints of dis·
exists that the Legislature intended to incorporate crimination. The jury awarded Olivas $1,700 in back
federal procedure*765 for assessing attorney'sfees. pay and $I03,000 forpast and future compensatory
See TEX. LAB.CODE § 21.001; Hoffmann-La Roche, damages. The trialcourt awarded Olivas $464,000
Inc. v. Zeltwam:er, 144 S.W.3d 438. 445-46 attorney fees and $6,500 paralegal fees through the
1Tex.2004). Nevertheless, in applying our state stat· rendition of judgment, plus $99,000 conditionally for
ute, we may draw on the far greater body of federal post-judgment proceedings and appeals. The court of

370 S.W.3d 757, 115 Fair Empl.Prac.Cas. (BNA) 510,55 Tex. Sup. Ct. J. 954
(Cite as: 370 S.W.3d 757)

appeals reversed the back-pay award and affirmed tbe should. Olivas's attorneys' request did not do so.
other damages and attorney feesFNI The court of ap-
peals held thatthe award of attorney fees was rea- Tex.,2012.
sonable. On its face, it could not have been. El Apple I, Ltd. v. Olivas
370 S.W.3d 757, 115 Fair Empl.Prac.Cas. (BNA) 510,
FNI. 324 S.W.3d 181 (Tex.App.-El Paso 55 Tex. Sup. Ct. J. 954
201 0).
END OF DOCUMENT
Olivas's lead counsel, Daniel Gonzalez, engaged
another lawyer, Francisco X. Dominguez, to help him
try the case. Dominguez stated that he spent !50 hours
total,but laterraised the number to 190. Gonzalez
stated that hespent 700 hours total and about 200 at
trial, meaning that Gonzalez spent 500 hours for pre-
trial proceedings. Discovery was minimal. The parties
exchanged requests for disclosureand a set of inter-
rogatories. Olivas sent El Apple a request for admis-
sions and two requests for production. Gonzalez es-
timated that I ,200-2,500 pages of documents were
produced. Three depositions were taken. One motion
to compel was heard and granted.

*766 Iagree with the Court that Gonzalez and
Dominguez's failure to produce any records support-
ing the hours they claimed to have spent on the case is
fatalto tbeir fee application.Even if theyhad, their
request would not be reasonable. Even if the time they
claimed to have spent fortrial were considered rea-
sonable, and it is not at all clear that it should be, 500
hours on the pretrial proceedings could not possibly be
reasonable.

There are two other,surer indicatorsof a rea-
sonable fee. One is that El Apple's lawyer, David
Pierce, and his associate spent 266.7 hours atabout
$200 per hour. The trial court ordered El Apple to pay
Olivas more than 7 times as much as it paid its own
lawyers, for 890 hours of attorney time at an average
of $521 per hour. The other iswhat contingent fee
might be reasonable had this been, say, a products
liabilitycase. A 50% contingent fee, taking into ac-
count tbe difficultyof the case and tbe realitythat
many cases are lost,would have been $51,500. In-
stead, the trial court awarded Olivas's attorneys 450%
of her recovery.

El Apple's counsel repeatedly stated to the trial
court that Olivas's attorneys had represented her well
and should be fullycompensated, objecting only to
tbeir exorbitant request. Statutory fee-shifting is not a
bonanza. It should take into account what the market

1 REPORTER'S RECORD

2 VOLUME 1 OF 1 VOLUME
3 TRIAL COURT CAUSE NO. 153-232668-08
4 VIRGINIA 0. KINSEL, et al. ) IN THE DISTRICT COURT
)
5 Plaintiffs, )
vs. ) TARRANT COUNTY, TEXAS
6 )
JANE 0. LINDSEY, et al, )
7 )
Defendants. ) 153RD JUDICIAL DISTRICT
8

10
11 TRIAL TESTIMONY OF LYNDELL KIRKLEY

12 TRIAL TESTIMONY OF LINDY JONES

13
14
15
16
17

18
19

20 On the 12th day of November 2012, the following

Case Info

Judge

Len A. Wade Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

March 06, 2013

Case Filing Date

September 09, 2008

County

Parties

Marshall Searcy Attorney
Frank Greenhaw Attorney
Susanna Johnson Attorney
Bradley Berryman Attorneys for Plaintiffs
Kelly Gibbons Attorneys for Plaintiffs
Lindy Jones Attorneys for Plaintiffs
Scott Kinsel Attorneys for Plaintiffs
Michael Branyon Attorneys for Defendants
Colin Murchison Attorneys for Defendants
Brian Garrett Attorney
William Jenkins Attorneys for Defendants
J. Kirkley Attorneys for Plaintiffs
Ana Forcum Attorneys for Plaintiffs
Phillip Ledbetter Attorney
William Kirkman Attorneys for Defendants
Sean Looney Attorneys for Plaintiffs
Joseph Johnson Attorneys for Plaintiffs
Dwayne Smith Attorney
Karin Cagle Attorneys for Plaintiffs
John Gilpin Attorney
Len Wade Attorneys for Defendants
John Cayce Attorney
William Willis Attorneys for Defendants

For full print and download access, please subscribe at https://www.trellis.law/.

Letter,Correspondence: VIRGINIA O. KINSEL, ET AL (RESTYLED PER ORDER 7/16/2020) vs ALICE LINDSEY PEACOCK, ET AL

Preview

Related Topics

Case Info

Parties