Preview
Filed: 2/8/2021 3:54 PM
J OHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 50462040
By: Lisa Kelly
2/8/2021 3:58 PM
CAUSE NO. 20-CV-1564
ROBERT L. MOODY, JR. IN THE DISTRICT COURT OF
Vv, GALVESTON COUNTY, TEXAS
GREER, HERZ, & ADAMS, LLP,
IRWIN “BUDDY” HERZ, JR. and
ROSS RANKIN MOODY 122nd JUDICIAL DISTRICT
PLAINTIFF ROBERT L. MOODY, JR.’S MOTION TO RECONSIDER RULE 914A
DISMISSALS AND
RESPONSE TO DEFENDANTS ROSS RANKIN MOODY AND GREER, HERZ, &
ADAMS, LLP’S
MOTIONS FOR ATTORNEYS’ FEES UNDER RULE 91A.7
Plaintiff Robert L. Moody, Jr. (“Bobby Moody, Jr.”) files his Motion to Reconsider the
Rule 91a Dismissals and Response to Defendant Greer, Herz, & Adams, LLP’s (“GHA”) Request
for Award of Fees and Costs Pursuant to Rule 91a.7 and Defendant Ross Rankin Moody’s (“Ross
Moody”) Motion to Assess Attorneys’ Fees Pursuant to Rule 91a.7 (collectively, the
“Defendants”.
Prior to transfer of the case to this Court, the 55th District Court of Harris County granted
Defendants’ Rule 91a motions to dismiss and provided an award of reasonable and necessary
attorneys’ fees and costs.! GHA requests $561,416.00 in attorneys’ fees and costs,” and Ross
Moody requests $1,643,233.12 in attorneys’ fees and costs.*
This Court should deny GHA’s request for attorneys’ fees and costs because its evidence
is insufficient to demonstrate that the requested fees are reasonable and necessary or that the fees
sought are within the scope of its 91a motion. This Court should not award Ross Moody the
' GHA Motion at Ex. 1; Ross Moody Motion at A-3.
? GHA Motion at 4.
3 Ross Moody Motion at 4.
amount requested in attorneys’ fees and costs and instead, award only reasonable and necessary
fees associated with preparing its 91a motion to dismiss.
I This Court should reconsider the Orders dismissing Plaintiff Bobby Moody, Jr.’s
claims under Rule 91a.
This Court should reconsider the orders dismissing Bobby Moody, Jr.’s claims under Texas
Rule of Civil Procedure 91a.*
A. This Court has the authority to reconsider the Rule 91a orders.
This Court has the authority to reconsider the orders on the Rule 91a motions because there
is no final judgment in this case. Because the trial court denied Herz’s Rule 91a motion as to
claims against him as trustee, the orders dismissing the other claims are still interlocutory.» A
“trial court holds continuing authority to reconsider its interlocutory orders while it has plenary
power over the case. 6
This Court, therefore, has the authority to reconsider the Rule 91a rulings.
B. This Court should deny the Rule 91a motions.
The court erred in granting the Rule 91a motions. As Bobby Moody, Jr. explained in his
response to the Rule 91a motions, his claims against all Defendants are properly based in law and
fact.”
4 The order dismissed all of Bobby Moody, Jr.’s claims against Ross Rankin Moody and Greer, Herz & Adams LLP,
as well as his claims against Irwin “Buddy” Herz in Herz’s capacity as lawyer, leaving only his claims against Herz
in his capacity as trustee.
5 Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (no final judgment until all claims of all parties have
been disposed).
6 Moring v. Inspectorate Am. Corp., 529 S.W.3d 145, 150 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
7 See Bobby Moody Rule 91a Response (filed Aug. 24, 2020); TEX. R. CIv. P. 91a.1.
2
C. At a minimum, this Court should change the dismissal to without prejudice and
allow Bobby Moody, Jr. the opportunity to replead.
In his response to the Rule 91a motions, Bobby Moody, Jr. requested that he be allowed to
replead if the motions were granted.* The court did not allow that and, instead, dismissed his
claims with prejudice. This Court should, at a minimum, convert the dismissal to one without
prejudice and allow Bobby Moody, Jr. the opportunity to amend his pleadings.
Rule 91a does not specify whether dismissals should be with or without prejudice.’
Nothing in the rule prohibits a court from dismissing a case without prejudice.!? Rule 91a is based
on Federal Rule of Civil Procedure 12(b)(6), and Texas courts have held that Rule 12(b)(6) caselaw
interpreting Rule 12(b)(6) is instructive when interpreting Rule 91a. ul Under Rule 12(b)(6),
dismissals are generally without prejudice and plaintiffs are generally given the opportunity to
amend. |?
Therefore, if this Court does not deny the Rule 91a motions, it should change the dismissal
to without prejudice and allow Bobby Moody, Jr. the opportunity to amend his petition.
IL. This Court Has Great Discretion in Determining Attorneys’ Fees.
Texas Rule of Civil Procedure 91a.7 allows a discretionary award of costs and reasonable
and necessary attorneys’ fees to the prevailing party on a motion to dismiss under Rule 91a.!> The
Texas Supreme Court has held that a “reasonable” attorneys’ fee “is one that is not excessive or
Bobby Moody Rule 91a Response at 37.
° Tex. R. Civ. P. 91a.
102 MCDONALD & CARLSON TEX. CIV. PRAC. § 9:27.65 (2d. ed.); Timothy Patton, Motions to Dismiss Under Texas
Rule 91a: Practice, Procedure and Review, 33 REV. LITIG. 469, 555 (2014).
"| Wooley v. Schaffer, 447 SW.3d 71, 76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (“we find case law
interpreting Rule 12(b)(6) instructive”).
"2 US. ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 270 (Sth Cir. 2010); Great Plains Tr. Co. v. Morgan
Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).
13 Tex. R. Civ. P. 91a.7. Rule 91a.7 was amended in 2019, effective on cases filed after September 1, 2019, to change
the award of attorneys’ fees and costs from mandatory to discretionary.
3
extreme, but rather moderate or fair.”'* The Texas Supreme Court has also held that the amount
ofa reasonable attorneys’ fee rests within the trial court’s “sound discretion.” !> This Court’s ruling
on the amount of attorneys’ fees will, therefore, be reviewed for abuse of discretion. '° To establish
abuse of discretion, the Defendants will have to prove that this Court acted “without reference to
any guiding rules and principles. v7
“When a claimant wishes to obtain attorney's fees from the opposing party, the claimant
must prove that the requested fees are both reasonable and necessary.”!® The burden to provide
sufficient evidence to demonstrate that the hours worked and that the hourly rate were reasonable
lies with the fee claimant.'? Attorneys’ fees pursuant to a contractual fee agreement between a
prevailing party and its attorney does not necessarily entail reasonableness and necessity.?°
Additionally, attorneys’ fees for “duplicative, excessive, or inadequately documented work should
be excluded. 21
Under the lodestar method for determining a reasonable attorneys’ fee, a court must
determine the reasonable amount of hours worked at a reasonable hourly rate. 22 Then, the
reasonable amount of hours is multiplied by that reasonable hourly rate to determine the lodestar
4 Garcia v. Gomez, 319 8.W.3d 638, 642 (Tex. 2010).
'S Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016); see also Cypress Creek EMS v. Dolcefino, 548 $.W.3d 673,
691 (Tex. App.—Houston [1st Dist.] 2018, pet. denied); Day v. Fed'n of State Med. Boards of the United States, Inc.,
579 S.W.3d 810, 827 (Tex. App.—San Antonio 2019, pet. denied).
'6 North Star Water Logic, LLC v. Ecolotron, Inc. 486 S.W.3d 102, 105 (Tex. App.—Houston [14th Dist.] 2016, no
pet.) (“We generally review a trial court's award of attorney's fees for an abuse of discretion.”).
"7 In re Nat'l Lloyds Ins. Co., 507 S.W.3d 219, 226 (Tex. 2016).
'8 Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.3d 469, 489 (Tex. 2016).
19 Td. at 498.
20 Td.
2! Id. (citing El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762 (Tex. 2012).
» Id. at 494 (citing El Apple I, 370 S.W.3d at 760).
or base fee, which is presumptively reasonable.”> The lodestar can be adjusted up or down based
on relevant factors set forth in Arthur Andersen:
the time and labor required, the novelty and difficulty of the questions
involved, and the skill required to perform the legal service properly;
the likelihood that acceptance of the particular employment will
preclude other employment;
the fee customarily charged in the locality for similar legal services;
the amount involved and the results obtained;
the time limitations imposed by the client or circumstances;
the nature and length of the professional relationship with the client;
the experience, reputation, and ability of the lawyers performing the
services; and
whether the fee is fixed or contingent or the uncertainty of collection
before the services have been rendered.”*
Evidence to a reasonable amount of hours worked and reasonable rate of attorneys’ fees
must, at a minimum, include evidence of (1) the particular services performed, (2) who performed
the 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
such services.*> This proof must be sufficient to allow a court “to perform a meaningful review of
[the] fee application. 9926
3 Id. at 490, 494.
4 Id.; Arthur Andersen & Co. v. Perry Equip. Corp., 945 8.W.2d 812, 818 (Tex. 1997).
5 Rohrmoos Venture, 578 S.W.3d at 501-02; see also Fiamma Statler, LP v. Challis, No. 02-18-00374-CV, 2020 WL
6334470, at *17 (Tex. App.—Fort Worth Oct. 29, 2020, no pet. h.) (mem. op.).
°6 Sullivan v. Abraham, 488 S.W.3d 294, 599-600 (Tex. 2016) (quoting E/ Apple I, 370 S.W.3d at 764).
5
il. This Court Should Deny GHA All of its Requested Fees and Cos:
D. The billing records for GHA’s requested fees are legally insufficient to support an
award of attorneys’ fees.
In order to support an award of attorneys’ fees and costs assessed against an opposing party,
the requesting party must demonstrate that the requested fees are both reasonable and necessary.”’
Evidence to demonstrate that the requested fees are reasonable and necessary must be detailed
enough for a court to make a meaningful lodestar determination.?* GHA seeks $561,416.00 in
attorneys’ fees and costs for all costs of defense of the lawsuit, including fees that are outside the
scope of its 91a motion.”? But GHA has failed to demonstrate that any of the fees that it is
requesting are reasonable or necessary due to the lack of sufficient evidence to support such an
award. It is also impossible to determine which of the fees are for preparation of the 91a motion
and attending a hearing on the motion. GHA’s request for attorneys’ fees and costs should
therefore be denied. Alternatively, this Court should award GHA only its reasonable and necessary
costs related to bringing its 91a motion for which there is sufficient evidence.
To support of its request for fees, GHA provided (1) the declaration of David J. Beck; (2)
heavily redacted billing invoices for tasks performed on this matter; and (3) the resumes of the
attorneys who were involved in GHA’s defense. This evidence does not support GHA’s request
for attorneys’ fees because they are too general and it is impossible to make a determination of
reasonableness and necessity based on this evidence.
Based on the billing records GHA provided, it is impossible to determine the
reasonableness and necessity of the tasks performed. It is also impossible to determine what tasks
27 Rohrmoos Venture, 578 S.W.3d at 488.
°8 Hong v. Havey, 551 S.W.3d 875, 892-93 (Tex. App.—Houston [14th Di .] 2018, no pet.); Felix v. Prosperity Bank,
01-14-00997-CV, 2015 WL 9242048, at *4 (Tex. App.—Houston [1st Dist.] Dec. 17, 2015, no pet.).
°° GHA Motion at 4.
were performed and which fees are associated with bringing GHA’s 91a motion to dismiss. An
excerpt of the records demonstrates that each time entry is so heavily redacted that it is impossible
to make any meaningful evaluation of the reasonableness or necessity of the services performed.*°
These redactions prevent any determination what particular services were actually performed. So
it is impossible to determine whether those tasks are within the scope of the 91a motion. This fails
to meet the minimum evidence needed to demonstrate the hours worked or the rate were
reasonable, or that the work done was necessary.*!
DJB r ion with A. Mytelk ari
dene with H. Rew fet TR Gil iew
12
8 BDD ly
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8 DJB Reviey jou rresponden
BDD ofer
ru nents f drat Jismissal motion
The non-redacted parts of the billing entries lack any specificity on the task performed so
that it is impossible to make a determination on whether a reasonable amount of time was spent
on the task. Without being able to ascertain what tasks were performed, it is impossible to
determine whether the amount of time spent performing these services were reasonable or
necessary, or whether they are within the scope of GHA’s 91a motion.
3 Matter of Estate of Poe, 591 §.W.3d 607, 652-53 (Tex. App.—El Paso 2019, pet. filed) (holding that the party
requesting attorneys’ fees was not entitled to the fees because the evidence submitted in support of the fees: billing
records: were so heavily redacted that every topic of legal research and the substance of every communication were
redacted, and the trial court did not have sufficient information to make a meaningful assessment on reasonableness
or necessity).
3! Rohrmoos Venture, 578 S.W.3d at 498 (holding that at a minimum, sufficient evidence to demonstrate
reasonableness includes evidence of “particular services performed.”).
7
It is also impossible to determine how much of the fees were incurred for work related to
the 91a motion. On top of heavy redactions, many of the time entries are lumped together for
several tasks that include work on the 91a motion and other work outside of the scope of the 9la
motion. For example, the following time entry purports to be eight and a half hours of work for
several different categories of tasks, some which are related to the 91a motion, but it is impossible
to determine what portion was for work on the 91a motion.
08/24/20 ASM Attention to document production and correspondence with S. Sinclair
|, produce third set of documents and correspondence with D. Bergen
regarding same; attention to document review: prepare for and attend deposition
of G. Garrison; call with G. Garrison, A. Mytelka, and D. Beck following
deposition; correspondence with co-defense counsel |, prepare
joinder in motion to quash third-party subpoenas; receive and review request for
additional depositions from opposing counsel; receive and begin review of
— to Rule a motions; correspondence with A. Mytelka
8.50 hrs 475.00 /hr 4,03ay 50
GHA has failed to provide sufficient evidence of its attorneys’ fees and attempts to include
other work unrelated to the 91a motion, which is outside the scope of attorneys’ fees it should be
awarded, if any.
If this Court rules that GHA should be awarded attorneys’ fees and costs regardless of its
legally insufficient evidence, it should award GHA attorneys’ fees and costs associated with
bringing its 91a motion to dismiss that the Court determines is reasonable and necessary. Because
it is impossible to determine what is reasonable and necessary and how much time was spent in
bringing GHA’s 91a motion based on the billing records, this Court should disregard the records
in its determination of reasonable and necessary fees.
E. The affidavit of David J. Beck is legally insufficient to support an award of
attorneys’ fees.
“General, conclusory testimony devoid of any real substance will not support a fee
award. 9932 In Rohrmoos Venture, the Texas Supreme Court deemed that testimony regarding
“searching through ‘millions’ of emails, a «6, reviewing ‘hundreds of thousands’ of papers in
discovery,” participating in “more than forty depositions,” and working on a “forty-page motion
for summary judgment” were “too general to establish that the requested fees were reasonable and
necessary.” In a similar fashion, the only statements of substance in the declaration of David J.
Beck regarding the details of the tasks performed are extremely general—more so than the
statements which were deemed “too general” in Rohrmoos Venture. A few of those statements are
as follows:
“Ms. Miller participated in virtually all aspects of the case, including
meeting and communicating with the clients; researching and drafting
motions, responses, and other filings; responding to Plaintiffs
extraordinarily burdensome discovery requests; reviewing and
producing documents and preparing GHA’s privilege log; and
coordinating GHA’s large-scale privilege review and document
production... 7734
“Ms. Roblyer assisted with GHA’s document review and production, as
well as research and drafting various motions, responses, and replies. 9935
“Ms. Skagerber worked on and supervised GHA’s large-scale document
review and production. 936
“Ms. Raffetto assisted with GHA’s document review and production, as
well as research and drafting of various motions, responses, and
replies. 037
» Rohrmoos Venture, 578 S.W.3d at 502
3 Rohrmoos Venture, 578 S.W.3d at 505
*4 GHA Motion at Ex. 2, 6.
33 Id.
36 Id.
37 Id.
The remainder of the declaration generally describes the tasks performed by the paralegals
on the case.** These statements are devoid of any real substance to support a fee statement because
they lack detail on the work done and how much time was spent on these tasks. Based on the
affidavit, in conjunction with the billing records, it is impossible to identify which portions of the
fees are for bringing the 91a motion. The affidavit, therefore, is legally insufficient to support any
award of reasonable and necessary attorneys’ fees.
The billing records are also legally insufficient to support any award of attorneys’ fees, as
they are so heavily redacted that it is impossible to understand the task performed. The resumes
provided lack any substantive information on the services performed, and merely demonstrate the
credentials of the attorneys who worked on this lawsuit.
GHA also argues that Bobby Moody, Jr.’s actions in the litigation forced GHA to expend
a significant amount in attorneys’ fees.*? However, as the Texas Supreme Court noted in
Rohrmoos Venture, even though “opposing counsel’s actions drove the cost of litigation, . . . and
that made [the requested] . . . attorney's fees necessary, even reasonable,” the generality of the
evidence to support the request was not enough to demonstrate that the requested fees were
reasonable and necessary.*? So regardless of whether GHA’s requested attorneys’ fees are
reasonable or necessary—which they are not—the evidence it provides to prove reasonableness
and necessity are too general to support an award of those fees.
38 Id. at {§ 7-8. For example, the declaration states, “Ms. Sinclair a! ted with all aspects of case management,
including organization and management of document: ” There is no indi tion of the volume of documents involved
or specifically what the “case management” entails. This is too general to support an award of fees.
3° GHA Motion at § 2 (“[A] significant amount of legal work was required to be performed on GHA’s behalf. . This
was due in large part to the burdensome and sometimes harassing litigation tactics employed by Plaintiff.”).
4° Rohrmoos Venture, 578 S.W.3d at 505.
10
This Court, therefore, should deny GHA’s request for attorneys’ fees and costs because the
evidence it provided is too general and insufficient to uphold a fee award. Alternatively, this Court
should award GHA only its reasonable and necessary costs for bringing its 91a motion to dismiss.
Iv. This Court Should Award Ross Moody Only Reasonable and Necessary Fees
Associated with Preparing His 91a Motion to Dismiss.
This Court has broad discretion in determining the reasonable and necessary fees that
should be awarded.*! This Court should limit Ross Moody’s award of reasonable and necessary
fees to preparing his 91a motion to dismiss.
A. This Court should award Ross Moody only the fees incurred in connection with
preparing his 91a motion to dismiss and attending the hearing for the motion.
Ross Moody requests a total of $1,643,233.12 in attorneys’ fees and costs—only
$462,423.54 of which were purportedly for preparing the 91a motion and attending a hearing on
the motion.” He is requesting fees for all of the work in defending against this lawsuit—not just
the fees associated with preparing his 91a motion and attending a hearing on it. As explained
below, no portion of his requested fees are reasonable and necessary—even the portion of the fees
in connection with bringing the 91a motion. So awarding all of Ross Moody’s requested fees and
costs would be unreasonable. This Court should award Ross Moody reasonable and necessary
fees only for tasks in connection with his 91a motion.*?
In addition to the $462,423.54 in fees requested for 616 hours of work related to bringing
the 91a motion, Ross Moody also requests fees for the following:
4! Rohrmoos Venture, 578 S.3d at 489.
* Ross Moody Motion at 4; Ex. A, § 22(c).
3 Koenig v. Blaylock, 497 S.W.3d 595, 601 (Tex. App.—Austin 2016, pet. denied) (holding that had the trial court
properly granted the 91a motion to dismiss, it should have awarded the movant “attorney’s fees and costs associated
with filing the motion . . . .”) (emphasis added).
ll
e $299,330.71 for 324.5 hours of general defense work;
e $183,172.06 for 186.5 hours of work related to bringing a motion to transfer venue;*> and
e $698,296.81 for 950 hours of conducting discovery and discovery-related motions.*°
A cursory review of the requested fees demonstrates that the bulk of the fees are for work unrelated
to bringing the 91a motion. Because the additional fees are outside the scope of the 91a motion,
these fees should be excluded.
Ross Moody also requests $61,095.75 for anticipated fees for the preparation and hearing
of his motion for attorneys’ fees.*” Nothing in Rule 91a.7 contemplates an award for proving up
fees. The 55th District Court has ordered for the claims against Robert Moody to be dismissed.
Since they are now dismissed, the subsequent motion for attorneys’ fees cannot be “incurred with
respect to the challenged cause[s] of action.”** So Robert Moody’s request for fees associated
with bringing his motion for attorney’s fees should be excluded from the reasonable and necessary
fees.
B. Ross Moody has not demonstrated that his requested fees are reasonable or necessary.
Ross Moody’s purported fees incurred for preparing his motion to dismiss is
$523,519.28.” This is an exorbitant amount for preparing one motion, regardless of how complex
Ross Moody claims the issues are. Nonetheless, Ross Moody has not provided sufficient evidence
to demonstrate that any of the requested fees are reasonable or necessary. In the billing records
Ross Moody provided, it is difficult to segregate what category each task falls under because many
“4 Ross Moody Motion at 26.
45 Ross Moody Motion at 27.
46 Ross Moody Motion at 28-31. Much of the discovery work is related to Ross Moody’s motion to transfer venue.
47 Ross Moody Motion at 23, Ex. A, § 24-25.
48 Tex. R. Clv. P. 91a.7.
4° Ross Moody Motion at Ex. A, at 15.
12
of the tasks related to different categories—for example, discovery, preparing the 91a motion,
etc.—are lumped into one time entry.
07/23/20 SHAR Summarize additional caselaw undermining plaintiffs fiduciary 8.50
duty daim including that strained relations undermine such a
claim; circulate summary to Stacey Vu; summarize caselaw
undermining plaintiff's daim that he is entitled to a
disgorgement remedy including research supporting that he
lacks standing; circulate summary to Stacey Vu; circulate
venue-related communications to Page Robinson; edit Motion
for Protection from Merits Discovery and Motion for
Scheduling Order, create and revise exhibit and chart to 91a
Motion to Dismiss outlining the various Moody-affiliated
entities discussed in plaintiff's petition; research caselaw
Supporting that co-defendants collaborating in
acainst daims does not constitute a conspirac i
It is also impossible to determine how much of the fees incurred were related to preparing
the 91a motion. It is difficult, if not impossible, to determine whether the fees incurred were
reasonable or necessary if the tasks are not segregated. This evidence is insufficient to support
Ross Moody’s request for fees.
Additionally, Ross Moody has not provided sufficient evidence to show that the hourly
rates of his attorneys are reasonable or in line with those rates of the Houston legal market. To
prevent a windfall for Ross Moody, this Court should adjust the lodestar down and not award Ross
Moody such an unreasonably high or excessive fee.*°
The following Arthur Andersen factors weigh in favor of reducing the lodestar:
There is little to no risk of Ross Moody’s attorneys precluding other
employment due to accepting Ross Moody asa client.
The hourly rate of Ross Moody’s attorneys are not in line with those
customarily charged in the locality for similar legal services.
5% Rohrmoos Venture, 578 S.W.3d at 502.
13
e Based on the billing records Ross Moody provided, the fee appears to
be fixed and there is little to no risk of his attorneys being unable to
collect those fees.*!
Any contractual hourly rate Ross Moody has with his attorneys does not necessarily mean
that they are reasonable.*? Ross Moody has not provided sufficient evidence to support that the
hourly rates of his attorney—which range from $448.05 for associate fees to $1,392.00 for partner
fees—are reasonable or representative of the Houston legal market.>> Attached to the declaration
of Harry Reasoner are two articles from Law.com and the Houston Chronicle, purportedly
justifying such high hourly rates.*+ However, these articles do not support Mr. Reasoner’s
assertion that the hourly rates are in line with those of the local legal market. The Law.com article
describes high hourly rates upwards of $1,000 per hour for bankruptcy work—this case has nothing
to do with bankruptcy. 55 The Houston Chronicle article was published in 2017, and does not
reflect the market rates in 2020, when the services were performed.*° Additionally, the rates
described in this article are a “sampling of Houston’s highest-priced lawyers. 9957 “Highest-priced”
does not necessarily mean “reasonable” or that these extraordinarily high rates are representative
of the legal market. Ross Moody has therefore not provided sufficient justification for the high
hourly rates of his attorneys.
5! Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
* Rohrmoos Venture, 578 S.W.3d at 487-88 (“a client's agreement to a certain fee arrangement or obligation to pay a
particular amount does not necessarily establish that fee as reasonable and necessary.”).
53 Ross Moody Motion at Ex. A, 15.
4 Ross Moody Motion at Exs. A, {| 34; A-26; A-27.
55 Ross Moody Motion at Ex. A-26.
© Ross Moody Motion at Ex. A-27.
57 Ross Moody Motion at Ex. A-27 (emphasis added).
14
Ross Moody argues that his attorneys’ rates were reasonable, in part, because none of those
rates exceed Bobby Moody, Jr.’s attorneys’ rates.** But it is illogical to use an opposing party’s
fees to measure the reasonableness and necessity of one’s own fees.°” The Texas Supreme Court
has noted that opposing parties “working on the same tasks, . . . litigating on the same case do not
approach those tasks in a sufficiently comparable manner to be genuinely probative of the degree
of effort or skill required by one another.” It has also noted that the particular rates charged in a
particular case from one specific law firm “does not have a bearing on normally charged for similar
legal work in the area. 61 So regardless of whether the rates charged by Bobby Moody, Jr.’s
attorneys are higher than those of Ross Moody’s attorneys, this does not establish that the requested
fees are reasonable.
This Court should reject Ross Moody’s unreasonable hourly rates and instead, base the
attorneys’ fees on customary rates charged by Houston-area lawyers. This Court should also award
Ross Moody only the reasonable and necessary fees incurred with respect to bringing the 9la
motion to dismiss.
C. This Court should disregard any evidence from other cases that are wholly unrelated
to this case.
In an attempt to confuse the issues, Ross Moody extensively details the legal work
performed for other cases involving Bobby Moody, Jr. and the Moody entities—which are
unrelated to this case—going so far as to attach pleadings and records from those cases as part of
58 Ross Moody Motion at 23 (“In fact, Plaintiff's counsel’s billing rate, which is $1,500 per hour, exceeds any of the
billing rates charged to Ross in this case.”).
*° See In re Nat'l Lloyds Ins. Co., 532 S.W.3d 794, 809-10 (Tex. 2017) (holding that an opposing party’s fees “do not,
in and of themselves, make it any more probable that a requesting party's attorney fees are reasonable and necessary.”).
Td. at 811.
51 Jd. (quoting Blowers v. Lawyers Coop. Publ'g Co., 526 F. Supp. 1324, 1328 (W.D.N.Y. 1981)).
15
the evidence in support of his request for attorneys’ fees. 62 Evidence pertaining to those other
cases have no relation to the issues in this case and should have no bearing on the reasonable and
necessary attorneys’ fees in this case. To determine an appropriate fee award, the court may look
at the “entire record and to view the matter in light of the amount in controversy, the nature of the
case, and his or her personal experience as a lawyer and judge. 2963 However, Ross Moody is
attempting to introduce outside evidence from the other cases, which was not previously in the
record for this case, to support his request for attorneys’ fees. This Court should pay no regard to
this evidence.
Vv. Conclusion
This Court should reconsider the Orders granting the Rule 91a motions and should deny
those motions. At a minimum, this Court should change the dismissal from with prejudice to
without prejudice and allow Plaintiff Bobby Moody, Jr. to amend his pleadings.
This Court should also deny an award of attorneys’ fees and costs to GHA because it has
not set forth sufficient evidence to support its request for fees and costs. This Court should award
to Ross Moody only reasonable and necessary attorneys’ fees and costs for bringing his 91a motion
to dismiss.
[Signature on Following Page]
© See, e.g., Ross Moody Motion at Exs. A-6; A-7; A-63; A-64; A-65; A-66.
® Cole Chem. & Distrib., Inc. v. Gowing, 228 S.W.3d 684, 690 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
16
Respectfully submitted,
THE BUZBEE LAW FIRM
By: /s/ Anthony G. Buzbee
Anthony G. Buzbee
State Bar No. 24001820
tbuzbee@txattorneys.com
David L. Bergen
State Bar No. 24097371
dbergen@txattorneys.com
Brittany C. Ifejika
State Bar No. 24111011
bifejika@txattorneys.com
J.P. Morgan Chase Tower
600 Travis, Suite 7300
Houston, Texas 77002
Telephone: (713) 223-5393
Facsimile: (713) 223-5909
www.txattorneys.com
ATTORNEYS FOR PLAINTIFF
ROBERT L. MOODY, JR.
17
CERTIFICATE OF SERVICE
I certify that this document has been furnished to the attorneys below in accordance with Texas
Rule of Civil Procedure 21 and 21a by the Court’s electronic filing system on February 8, 2021.
Robin C. Gibbs David J. Beck
Tex. Bar No. 07853000 Tex. Bar No. 00000070
gibbs@gibbsbruns.com dbeck@beckredden.com
Samuel W. Cruse, III B.D. Daniel
State Bar No. 24036423 Tex. Bar No. 05362200
cruse@gibbsbruns.com bddaniel@beckredden.com
Ross M. MacDonald Allison Standish Miller
State Bar No. 24087956 Tex. Bar No. 24046440
rmacdonald@gibbsbruns.com miller@beckredden.com
Gibbs & Bruns, LLP, Beck Redden, LLP
1100 Louisiana, Suite 5300, Houston Office
Houston, Texas 77002 1221 McKinney Street
Tel: 713.751/5217 Suite 4500
Fax: 713.750.0903 Houston, Texas 77010
COUNSEL FOR DEFENDANT Tel: 713.951.6209
IRWIN “BUDDY” HERZ, JR. Fax: 713.951.3720
COUNSEL FOR DEFENDANT
GREER, HERZ & ADAMS, LLP
Harry M. Reasoner
Tex. Bar No. 16642000
hreasoner@velaw.com
Stacey Neumann Vu
Tex. Bar No. 24047047
vu@velaw.com
Page Robinson
Tex. Bar No. 24093053
probinson@velaw.com
Shelby Hart-Armstrong
Tex. Bar No. 24116490
Shart-armstrong@velaw.com
Vinson & Elkins, LLP
1001 Fannin Street
Suite 2500
Houston, Texas 77002
Tel: 713.758.2358
Fax: 713.615.5173
COUNSEL FOR DEFENDANT
ROSS RANKIN MOODY
/s/_Anthony G. Buzbee
Anthony G. Buzbee
18
Preview
Filed: 2/8/2021 3:54 PM J OHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 50462040 By: Lisa Kelly 2/8/2021 3:58 PM CAUSE NO. 20-CV-1564 ROBERT L. MOODY, JR. IN THE DISTRICT COURT OF Vv, GALVESTON COUNTY, TEXAS GREER, HERZ, & ADAMS, LLP, IRWIN “BUDDY” HERZ, JR. and ROSS RANKIN MOODY 122nd JUDICIAL DISTRICT PLAINTIFF ROBERT L. MOODY, JR.’S MOTION TO RECONSIDER RULE 914A DISMISSALS AND RESPONSE TO DEFENDANTS ROSS RANKIN MOODY AND GREER, HERZ, & ADAMS, LLP’S MOTIONS FOR ATTORNEYS’ FEES UNDER RULE 91A.7 Plaintiff Robert L. Moody, Jr. (“Bobby Moody, Jr.”) files his Motion to Reconsider the Rule 91a Dismissals and Response to Defendant Greer, Herz, & Adams, LLP’s (“GHA”) Request for Award of Fees and Costs Pursuant to Rule 91a.7 and Defendant Ross Rankin Moody’s (“Ross Moody”) Motion to Assess Attorneys’ Fees Pursuant to Rule 91a.7 (collectively, the “Defendants”. Prior to transfer of the case to this Court, the 55th District Court of Harris County granted Defendants’ Rule 91a motions to dismiss and provided an award of reasonable and necessary attorneys’ fees and costs.! GHA requests $561,416.00 in attorneys’ fees and costs,” and Ross Moody requests $1,643,233.12 in attorneys’ fees and costs.* This Court should deny GHA’s request for attorneys’ fees and costs because its evidence is insufficient to demonstrate that the requested fees are reasonable and necessary or that the fees sought are within the scope of its 91a motion. This Court should not award Ross Moody the ' GHA Motion at Ex. 1; Ross Moody Motion at A-3. ? GHA Motion at 4. 3 Ross Moody Motion at 4. amount requested in attorneys’ fees and costs and instead, award only reasonable and necessary fees associated with preparing its 91a motion to dismiss. I This Court should reconsider the Orders dismissing Plaintiff Bobby Moody, Jr.’s claims under Rule 91a. This Court should reconsider the orders dismissing Bobby Moody, Jr.’s claims under Texas Rule of Civil Procedure 91a.* A. This Court has the authority to reconsider the Rule 91a orders. This Court has the authority to reconsider the orders on the Rule 91a motions because there is no final judgment in this case. Because the trial court denied Herz’s Rule 91a motion as to claims against him as trustee, the orders dismissing the other claims are still interlocutory.» A “trial court holds continuing authority to reconsider its interlocutory orders while it has plenary power over the case. 6 This Court, therefore, has the authority to reconsider the Rule 91a rulings. B. This Court should deny the Rule 91a motions. The court erred in granting the Rule 91a motions. As Bobby Moody, Jr. explained in his response to the Rule 91a motions, his claims against all Defendants are properly based in law and fact.” 4 The order dismissed all of Bobby Moody, Jr.’s claims against Ross Rankin Moody and Greer, Herz & Adams LLP, as well as his claims against Irwin “Buddy” Herz in Herz’s capacity as lawyer, leaving only his claims against Herz in his capacity as trustee. 5 Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (no final judgment until all claims of all parties have been disposed). 6 Moring v. Inspectorate Am. Corp., 529 S.W.3d 145, 150 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). 7 See Bobby Moody Rule 91a Response (filed Aug. 24, 2020); TEX. R. CIv. P. 91a.1. 2 C. At a minimum, this Court should change the dismissal to without prejudice and allow Bobby Moody, Jr. the opportunity to replead. In his response to the Rule 91a motions, Bobby Moody, Jr. requested that he be allowed to replead if the motions were granted.* The court did not allow that and, instead, dismissed his claims with prejudice. This Court should, at a minimum, convert the dismissal to one without prejudice and allow Bobby Moody, Jr. the opportunity to amend his pleadings. Rule 91a does not specify whether dismissals should be with or without prejudice.’ Nothing in the rule prohibits a court from dismissing a case without prejudice.!? Rule 91a is based on Federal Rule of Civil Procedure 12(b)(6), and Texas courts have held that Rule 12(b)(6) caselaw interpreting Rule 12(b)(6) is instructive when interpreting Rule 91a. ul Under Rule 12(b)(6), dismissals are generally without prejudice and plaintiffs are generally given the opportunity to amend. |? Therefore, if this Court does not deny the Rule 91a motions, it should change the dismissal to without prejudice and allow Bobby Moody, Jr. the opportunity to amend his petition. IL. This Court Has Great Discretion in Determining Attorneys’ Fees. Texas Rule of Civil Procedure 91a.7 allows a discretionary award of costs and reasonable and necessary attorneys’ fees to the prevailing party on a motion to dismiss under Rule 91a.!> The Texas Supreme Court has held that a “reasonable” attorneys’ fee “is one that is not excessive or Bobby Moody Rule 91a Response at 37. ° Tex. R. Civ. P. 91a. 102 MCDONALD & CARLSON TEX. CIV. PRAC. § 9:27.65 (2d. ed.); Timothy Patton, Motions to Dismiss Under Texas Rule 91a: Practice, Procedure and Review, 33 REV. LITIG. 469, 555 (2014). "| Wooley v. Schaffer, 447 SW.3d 71, 76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (“we find case law interpreting Rule 12(b)(6) instructive”). "2 US. ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 270 (Sth Cir. 2010); Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002). 13 Tex. R. Civ. P. 91a.7. Rule 91a.7 was amended in 2019, effective on cases filed after September 1, 2019, to change the award of attorneys’ fees and costs from mandatory to discretionary. 3 extreme, but rather moderate or fair.”'* The Texas Supreme Court has also held that the amount ofa reasonable attorneys’ fee rests within the trial court’s “sound discretion.” !> This Court’s ruling on the amount of attorneys’ fees will, therefore, be reviewed for abuse of discretion. '° To establish abuse of discretion, the Defendants will have to prove that this Court acted “without reference to any guiding rules and principles. v7 “When a claimant wishes to obtain attorney's fees from the opposing party, the claimant must prove that the requested fees are both reasonable and necessary.”!® The burden to provide sufficient evidence to demonstrate that the hours worked and that the hourly rate were reasonable lies with the fee claimant.'? Attorneys’ fees pursuant to a contractual fee agreement between a prevailing party and its attorney does not necessarily entail reasonableness and necessity.?° Additionally, attorneys’ fees for “duplicative, excessive, or inadequately documented work should be excluded. 21 Under the lodestar method for determining a reasonable attorneys’ fee, a court must determine the reasonable amount of hours worked at a reasonable hourly rate. 22 Then, the reasonable amount of hours is multiplied by that reasonable hourly rate to determine the lodestar 4 Garcia v. Gomez, 319 8.W.3d 638, 642 (Tex. 2010). 'S Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016); see also Cypress Creek EMS v. Dolcefino, 548 $.W.3d 673, 691 (Tex. App.—Houston [1st Dist.] 2018, pet. denied); Day v. Fed'n of State Med. Boards of the United States, Inc., 579 S.W.3d 810, 827 (Tex. App.—San Antonio 2019, pet. denied). '6 North Star Water Logic, LLC v. Ecolotron, Inc. 486 S.W.3d 102, 105 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“We generally review a trial court's award of attorney's fees for an abuse of discretion.”). "7 In re Nat'l Lloyds Ins. Co., 507 S.W.3d 219, 226 (Tex. 2016). '8 Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.3d 469, 489 (Tex. 2016). 19 Td. at 498. 20 Td. 2! Id. (citing El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762 (Tex. 2012). » Id. at 494 (citing El Apple I, 370 S.W.3d at 760). or base fee, which is presumptively reasonable.”> The lodestar can be adjusted up or down based on relevant factors set forth in Arthur Andersen: the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; the likelihood that acceptance of the particular employment will preclude other employment; the fee customarily charged in the locality for similar legal services; the amount involved and the results obtained; the time limitations imposed by the client or circumstances; the nature and length of the professional relationship with the client; the experience, reputation, and ability of the lawyers performing the services; and whether the fee is fixed or contingent or the uncertainty of collection before the services have been rendered.”* Evidence to a reasonable amount of hours worked and reasonable rate of attorneys’ fees must, at a minimum, include evidence of (1) the particular services performed, (2) who performed the 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 such services.*> This proof must be sufficient to allow a court “to perform a meaningful review of [the] fee application. 9926 3 Id. at 490, 494. 4 Id.; Arthur Andersen & Co. v. Perry Equip. Corp., 945 8.W.2d 812, 818 (Tex. 1997). 5 Rohrmoos Venture, 578 S.W.3d at 501-02; see also Fiamma Statler, LP v. Challis, No. 02-18-00374-CV, 2020 WL 6334470, at *17 (Tex. App.—Fort Worth Oct. 29, 2020, no pet. h.) (mem. op.). °6 Sullivan v. Abraham, 488 S.W.3d 294, 599-600 (Tex. 2016) (quoting E/ Apple I, 370 S.W.3d at 764). 5 il. This Court Should Deny GHA All of its Requested Fees and Cos: D. The billing records for GHA’s requested fees are legally insufficient to support an award of attorneys’ fees. In order to support an award of attorneys’ fees and costs assessed against an opposing party, the requesting party must demonstrate that the requested fees are both reasonable and necessary.”’ Evidence to demonstrate that the requested fees are reasonable and necessary must be detailed enough for a court to make a meaningful lodestar determination.?* GHA seeks $561,416.00 in attorneys’ fees and costs for all costs of defense of the lawsuit, including fees that are outside the scope of its 91a motion.”? But GHA has failed to demonstrate that any of the fees that it is requesting are reasonable or necessary due to the lack of sufficient evidence to support such an award. It is also impossible to determine which of the fees are for preparation of the 91a motion and attending a hearing on the motion. GHA’s request for attorneys’ fees and costs should therefore be denied. Alternatively, this Court should award GHA only its reasonable and necessary costs related to bringing its 91a motion for which there is sufficient evidence. To support of its request for fees, GHA provided (1) the declaration of David J. Beck; (2) heavily redacted billing invoices for tasks performed on this matter; and (3) the resumes of the attorneys who were involved in GHA’s defense. This evidence does not support GHA’s request for attorneys’ fees because they are too general and it is impossible to make a determination of reasonableness and necessity based on this evidence. Based on the billing records GHA provided, it is impossible to determine the reasonableness and necessity of the tasks performed. It is also impossible to determine what tasks 27 Rohrmoos Venture, 578 S.W.3d at 488. °8 Hong v. Havey, 551 S.W.3d 875, 892-93 (Tex. App.—Houston [14th Di .] 2018, no pet.); Felix v. Prosperity Bank, 01-14-00997-CV, 2015 WL 9242048, at *4 (Tex. App.—Houston [1st Dist.] Dec. 17, 2015, no pet.). °° GHA Motion at 4. were performed and which fees are associated with bringing GHA’s 91a motion to dismiss. An excerpt of the records demonstrates that each time entry is so heavily redacted that it is impossible to make any meaningful evaluation of the reasonableness or necessity of the services performed.*° These redactions prevent any determination what particular services were actually performed. So it is impossible to determine whether those tasks are within the scope of the 91a motion. This fails to meet the minimum evidence needed to demonstrate the hours worked or the rate were reasonable, or that the work done was necessary.*! DJB r ion with A. Mytelk ari dene with H. Rew fet TR Gil iew 12 8 BDD ly m=: 2s la 8 DJB Reviey jou rresponden BDD ofer ru nents f drat Jismissal motion The non-redacted parts of the billing entries lack any specificity on the task performed so that it is impossible to make a determination on whether a reasonable amount of time was spent on the task. Without being able to ascertain what tasks were performed, it is impossible to determine whether the amount of time spent performing these services were reasonable or necessary, or whether they are within the scope of GHA’s 91a motion. 3 Matter of Estate of Poe, 591 §.W.3d 607, 652-53 (Tex. App.—El Paso 2019, pet. filed) (holding that the party requesting attorneys’ fees was not entitled to the fees because the evidence submitted in support of the fees: billing records: were so heavily redacted that every topic of legal research and the substance of every communication were redacted, and the trial court did not have sufficient information to make a meaningful assessment on reasonableness or necessity). 3! Rohrmoos Venture, 578 S.W.3d at 498 (holding that at a minimum, sufficient evidence to demonstrate reasonableness includes evidence of “particular services performed.”). 7 It is also impossible to determine how much of the fees were incurred for work related to the 91a motion. On top of heavy redactions, many of the time entries are lumped together for several tasks that include work on the 91a motion and other work outside of the scope of the 9la motion. For example, the following time entry purports to be eight and a half hours of work for several different categories of tasks, some which are related to the 91a motion, but it is impossible to determine what portion was for work on the 91a motion. 08/24/20 ASM Attention to document production and correspondence with S. Sinclair |, produce third set of documents and correspondence with D. Bergen regarding same; attention to document review: prepare for and attend deposition of G. Garrison; call with G. Garrison, A. Mytelka, and D. Beck following deposition; correspondence with co-defense counsel |, prepare joinder in motion to quash third-party subpoenas; receive and review request for additional depositions from opposing counsel; receive and begin review of — to Rule a motions; correspondence with A. Mytelka 8.50 hrs 475.00 /hr 4,03ay 50 GHA has failed to provide sufficient evidence of its attorneys’ fees and attempts to include other work unrelated to the 91a motion, which is outside the scope of attorneys’ fees it should be awarded, if any. If this Court rules that GHA should be awarded attorneys’ fees and costs regardless of its legally insufficient evidence, it should award GHA attorneys’ fees and costs associated with bringing its 91a motion to dismiss that the Court determines is reasonable and necessary. Because it is impossible to determine what is reasonable and necessary and how much time was spent in bringing GHA’s 91a motion based on the billing records, this Court should disregard the records in its determination of reasonable and necessary fees. E. The affidavit of David J. Beck is legally insufficient to support an award of attorneys’ fees. “General, conclusory testimony devoid of any real substance will not support a fee award. 9932 In Rohrmoos Venture, the Texas Supreme Court deemed that testimony regarding “searching through ‘millions’ of emails, a «6, reviewing ‘hundreds of thousands’ of papers in discovery,” participating in “more than forty depositions,” and working on a “forty-page motion for summary judgment” were “too general to establish that the requested fees were reasonable and necessary.” In a similar fashion, the only statements of substance in the declaration of David J. Beck regarding the details of the tasks performed are extremely general—more so than the statements which were deemed “too general” in Rohrmoos Venture. A few of those statements are as follows: “Ms. Miller participated in virtually all aspects of the case, including meeting and communicating with the clients; researching and drafting motions, responses, and other filings; responding to Plaintiffs extraordinarily burdensome discovery requests; reviewing and producing documents and preparing GHA’s privilege log; and coordinating GHA’s large-scale privilege review and document production... 7734 “Ms. Roblyer assisted with GHA’s document review and production, as well as research and drafting various motions, responses, and replies. 9935 “Ms. Skagerber worked on and supervised GHA’s large-scale document review and production. 936 “Ms. Raffetto assisted with GHA’s document review and production, as well as research and drafting of various motions, responses, and replies. 037 » Rohrmoos Venture, 578 S.W.3d at 502 3 Rohrmoos Venture, 578 S.W.3d at 505 *4 GHA Motion at Ex. 2, 6. 33 Id. 36 Id. 37 Id. The remainder of the declaration generally describes the tasks performed by the paralegals on the case.** These statements are devoid of any real substance to support a fee statement because they lack detail on the work done and how much time was spent on these tasks. Based on the affidavit, in conjunction with the billing records, it is impossible to identify which portions of the fees are for bringing the 91a motion. The affidavit, therefore, is legally insufficient to support any award of reasonable and necessary attorneys’ fees. The billing records are also legally insufficient to support any award of attorneys’ fees, as they are so heavily redacted that it is impossible to understand the task performed. The resumes provided lack any substantive information on the services performed, and merely demonstrate the credentials of the attorneys who worked on this lawsuit. GHA also argues that Bobby Moody, Jr.’s actions in the litigation forced GHA to expend a significant amount in attorneys’ fees.*? However, as the Texas Supreme Court noted in Rohrmoos Venture, even though “opposing counsel’s actions drove the cost of litigation, . . . and that made [the requested] . . . attorney's fees necessary, even reasonable,” the generality of the evidence to support the request was not enough to demonstrate that the requested fees were reasonable and necessary.*? So regardless of whether GHA’s requested attorneys’ fees are reasonable or necessary—which they are not—the evidence it provides to prove reasonableness and necessity are too general to support an award of those fees. 38 Id. at {§ 7-8. For example, the declaration states, “Ms. Sinclair a! ted with all aspects of case management, including organization and management of document: ” There is no indi tion of the volume of documents involved or specifically what the “case management” entails. This is too general to support an award of fees. 3° GHA Motion at § 2 (“[A] significant amount of legal work was required to be performed on GHA’s behalf. . This was due in large part to the burdensome and sometimes harassing litigation tactics employed by Plaintiff.”). 4° Rohrmoos Venture, 578 S.W.3d at 505. 10 This Court, therefore, should deny GHA’s request for attorneys’ fees and costs because the evidence it provided is too general and insufficient to uphold a fee award. Alternatively, this Court should award GHA only its reasonable and necessary costs for bringing its 91a motion to dismiss. Iv. This Court Should Award Ross Moody Only Reasonable and Necessary Fees Associated with Preparing His 91a Motion to Dismiss. This Court has broad discretion in determining the reasonable and necessary fees that should be awarded.*! This Court should limit Ross Moody’s award of reasonable and necessary fees to preparing his 91a motion to dismiss. A. This Court should award Ross Moody only the fees incurred in connection with preparing his 91a motion to dismiss and attending the hearing for the motion. Ross Moody requests a total of $1,643,233.12 in attorneys’ fees and costs—only $462,423.54 of which were purportedly for preparing the 91a motion and attending a hearing on the motion.” He is requesting fees for all of the work in defending against this lawsuit—not just the fees associated with preparing his 91a motion and attending a hearing on it. As explained below, no portion of his requested fees are reasonable and necessary—even the portion of the fees in connection with bringing the 91a motion. So awarding all of Ross Moody’s requested fees and costs would be unreasonable. This Court should award Ross Moody reasonable and necessary fees only for tasks in connection with his 91a motion.*? In addition to the $462,423.54 in fees requested for 616 hours of work related to bringing the 91a motion, Ross Moody also requests fees for the following: 4! Rohrmoos Venture, 578 S.3d at 489. * Ross Moody Motion at 4; Ex. A, § 22(c). 3 Koenig v. Blaylock, 497 S.W.3d 595, 601 (Tex. App.—Austin 2016, pet. denied) (holding that had the trial court properly granted the 91a motion to dismiss, it should have awarded the movant “attorney’s fees and costs associated with filing the motion . . . .”) (emphasis added). ll e $299,330.71 for 324.5 hours of general defense work; e $183,172.06 for 186.5 hours of work related to bringing a motion to transfer venue;*> and e $698,296.81 for 950 hours of conducting discovery and discovery-related motions.*° A cursory review of the requested fees demonstrates that the bulk of the fees are for work unrelated to bringing the 91a motion. Because the additional fees are outside the scope of the 91a motion, these fees should be excluded. Ross Moody also requests $61,095.75 for anticipated fees for the preparation and hearing of his motion for attorneys’ fees.*” Nothing in Rule 91a.7 contemplates an award for proving up fees. The 55th District Court has ordered for the claims against Robert Moody to be dismissed. Since they are now dismissed, the subsequent motion for attorneys’ fees cannot be “incurred with respect to the challenged cause[s] of action.”** So Robert Moody’s request for fees associated with bringing his motion for attorney’s fees should be excluded from the reasonable and necessary fees. B. Ross Moody has not demonstrated that his requested fees are reasonable or necessary. Ross Moody’s purported fees incurred for preparing his motion to dismiss is $523,519.28.” This is an exorbitant amount for preparing one motion, regardless of how complex Ross Moody claims the issues are. Nonetheless, Ross Moody has not provided sufficient evidence to demonstrate that any of the requested fees are reasonable or necessary. In the billing records Ross Moody provided, it is difficult to segregate what category each task falls under because many “4 Ross Moody Motion at 26. 45 Ross Moody Motion at 27. 46 Ross Moody Motion at 28-31. Much of the discovery work is related to Ross Moody’s motion to transfer venue. 47 Ross Moody Motion at 23, Ex. A, § 24-25. 48 Tex. R. Clv. P. 91a.7. 4° Ross Moody Motion at Ex. A, at 15. 12 of the tasks related to different categories—for example, discovery, preparing the 91a motion, etc.—are lumped into one time entry. 07/23/20 SHAR Summarize additional caselaw undermining plaintiffs fiduciary 8.50 duty daim including that strained relations undermine such a claim; circulate summary to Stacey Vu; summarize caselaw undermining plaintiff's daim that he is entitled to a disgorgement remedy including research supporting that he lacks standing; circulate summary to Stacey Vu; circulate venue-related communications to Page Robinson; edit Motion for Protection from Merits Discovery and Motion for Scheduling Order, create and revise exhibit and chart to 91a Motion to Dismiss outlining the various Moody-affiliated entities discussed in plaintiff's petition; research caselaw Supporting that co-defendants collaborating in acainst daims does not constitute a conspirac i It is also impossible to determine how much of the fees incurred were related to preparing the 91a motion. It is difficult, if not impossible, to determine whether the fees incurred were reasonable or necessary if the tasks are not segregated. This evidence is insufficient to support Ross Moody’s request for fees. Additionally, Ross Moody has not provided sufficient evidence to show that the hourly rates of his attorneys are reasonable or in line with those rates of the Houston legal market. To prevent a windfall for Ross Moody, this Court should adjust the lodestar down and not award Ross Moody such an unreasonably high or excessive fee.*° The following Arthur Andersen factors weigh in favor of reducing the lodestar: There is little to no risk of Ross Moody’s attorneys precluding other employment due to accepting Ross Moody asa client. The hourly rate of Ross Moody’s attorneys are not in line with those customarily charged in the locality for similar legal services. 5% Rohrmoos Venture, 578 S.W.3d at 502. 13 e Based on the billing records Ross Moody provided, the fee appears to be fixed and there is little to no risk of his attorneys being unable to collect those fees.*! Any contractual hourly rate Ross Moody has with his attorneys does not necessarily mean that they are reasonable.*? Ross Moody has not provided sufficient evidence to support that the hourly rates of his attorney—which range from $448.05 for associate fees to $1,392.00 for partner fees—are reasonable or representative of the Houston legal market.>> Attached to the declaration of Harry Reasoner are two articles from Law.com and the Houston Chronicle, purportedly justifying such high hourly rates.*+ However, these articles do not support Mr. Reasoner’s assertion that the hourly rates are in line with those of the local legal market. The Law.com article describes high hourly rates upwards of $1,000 per hour for bankruptcy work—this case has nothing to do with bankruptcy. 55 The Houston Chronicle article was published in 2017, and does not reflect the market rates in 2020, when the services were performed.*° Additionally, the rates described in this article are a “sampling of Houston’s highest-priced lawyers. 9957 “Highest-priced” does not necessarily mean “reasonable” or that these extraordinarily high rates are representative of the legal market. Ross Moody has therefore not provided sufficient justification for the high hourly rates of his attorneys. 5! Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). * Rohrmoos Venture, 578 S.W.3d at 487-88 (“a client's agreement to a certain fee arrangement or obligation to pay a particular amount does not necessarily establish that fee as reasonable and necessary.”). 53 Ross Moody Motion at Ex. A, 15. 4 Ross Moody Motion at Exs. A, {| 34; A-26; A-27. 55 Ross Moody Motion at Ex. A-26. © Ross Moody Motion at Ex. A-27. 57 Ross Moody Motion at Ex. A-27 (emphasis added). 14 Ross Moody argues that his attorneys’ rates were reasonable, in part, because none of those rates exceed Bobby Moody, Jr.’s attorneys’ rates.** But it is illogical to use an opposing party’s fees to measure the reasonableness and necessity of one’s own fees.°” The Texas Supreme Court has noted that opposing parties “working on the same tasks, . . . litigating on the same case do not approach those tasks in a sufficiently comparable manner to be genuinely probative of the degree of effort or skill required by one another.” It has also noted that the particular rates charged in a particular case from one specific law firm “does not have a bearing on normally charged for similar legal work in the area. 61 So regardless of whether the rates charged by Bobby Moody, Jr.’s attorneys are higher than those of Ross Moody’s attorneys, this does not establish that the requested fees are reasonable. This Court should reject Ross Moody’s unreasonable hourly rates and instead, base the attorneys’ fees on customary rates charged by Houston-area lawyers. This Court should also award Ross Moody only the reasonable and necessary fees incurred with respect to bringing the 9la motion to dismiss. C. This Court should disregard any evidence from other cases that are wholly unrelated to this case. In an attempt to confuse the issues, Ross Moody extensively details the legal work performed for other cases involving Bobby Moody, Jr. and the Moody entities—which are unrelated to this case—going so far as to attach pleadings and records from those cases as part of 58 Ross Moody Motion at 23 (“In fact, Plaintiff's counsel’s billing rate, which is $1,500 per hour, exceeds any of the billing rates charged to Ross in this case.”). *° See In re Nat'l Lloyds Ins. Co., 532 S.W.3d 794, 809-10 (Tex. 2017) (holding that an opposing party’s fees “do not, in and of themselves, make it any more probable that a requesting party's attorney fees are reasonable and necessary.”). Td. at 811. 51 Jd. (quoting Blowers v. Lawyers Coop. Publ'g Co., 526 F. Supp. 1324, 1328 (W.D.N.Y. 1981)). 15 the evidence in support of his request for attorneys’ fees. 62 Evidence pertaining to those other cases have no relation to the issues in this case and should have no bearing on the reasonable and necessary attorneys’ fees in this case. To determine an appropriate fee award, the court may look at the “entire record and to view the matter in light of the amount in controversy, the nature of the case, and his or her personal experience as a lawyer and judge. 2963 However, Ross Moody is attempting to introduce outside evidence from the other cases, which was not previously in the record for this case, to support his request for attorneys’ fees. This Court should pay no regard to this evidence. Vv. Conclusion This Court should reconsider the Orders granting the Rule 91a motions and should deny those motions. At a minimum, this Court should change the dismissal from with prejudice to without prejudice and allow Plaintiff Bobby Moody, Jr. to amend his pleadings. This Court should also deny an award of attorneys’ fees and costs to GHA because it has not set forth sufficient evidence to support its request for fees and costs. This Court should award to Ross Moody only reasonable and necessary attorneys’ fees and costs for bringing his 91a motion to dismiss. [Signature on Following Page] © See, e.g., Ross Moody Motion at Exs. A-6; A-7; A-63; A-64; A-65; A-66. ® Cole Chem. & Distrib., Inc. v. Gowing, 228 S.W.3d 684, 690 (Tex. App.—Houston [14th Dist.] 2005, no pet.). 16 Respectfully submitted, THE BUZBEE LAW FIRM By: /s/ Anthony G. Buzbee Anthony G. Buzbee State Bar No. 24001820 tbuzbee@txattorneys.com David L. Bergen State Bar No. 24097371 dbergen@txattorneys.com Brittany C. Ifejika State Bar No. 24111011 bifejika@txattorneys.com J.P. Morgan Chase Tower 600 Travis, Suite 7300 Houston, Texas 77002 Telephone: (713) 223-5393 Facsimile: (713) 223-5909 www.txattorneys.com ATTORNEYS FOR PLAINTIFF ROBERT L. MOODY, JR. 17 CERTIFICATE OF SERVICE I certify that this document has been furnished to the attorneys below in accordance with Texas Rule of Civil Procedure 21 and 21a by the Court’s electronic filing system on February 8, 2021. Robin C. Gibbs David J. Beck Tex. Bar No. 07853000 Tex. Bar No. 00000070 gibbs@gibbsbruns.com dbeck@beckredden.com Samuel W. Cruse, III B.D. Daniel State Bar No. 24036423 Tex. Bar No. 05362200 cruse@gibbsbruns.com bddaniel@beckredden.com Ross M. MacDonald Allison Standish Miller State Bar No. 24087956 Tex. Bar No. 24046440 rmacdonald@gibbsbruns.com miller@beckredden.com Gibbs & Bruns, LLP, Beck Redden, LLP 1100 Louisiana, Suite 5300, Houston Office Houston, Texas 77002 1221 McKinney Street Tel: 713.751/5217 Suite 4500 Fax: 713.750.0903 Houston, Texas 77010 COUNSEL FOR DEFENDANT Tel: 713.951.6209 IRWIN “BUDDY” HERZ, JR. Fax: 713.951.3720 COUNSEL FOR DEFENDANT GREER, HERZ & ADAMS, LLP Harry M. Reasoner Tex. Bar No. 16642000 hreasoner@velaw.com Stacey Neumann Vu Tex. Bar No. 24047047 vu@velaw.com Page Robinson Tex. Bar No. 24093053 probinson@velaw.com Shelby Hart-Armstrong Tex. Bar No. 24116490 Shart-armstrong@velaw.com Vinson & Elkins, LLP 1001 Fannin Street Suite 2500 Houston, Texas 77002 Tel: 713.758.2358 Fax: 713.615.5173 COUNSEL FOR DEFENDANT ROSS RANKIN MOODY /s/_Anthony G. Buzbee Anthony G. Buzbee 18