In Rohrmoos Venture v. UTSW DVA Healthcare, 578 S.W.3d 469 (Tex. 2019), the Texas Supreme Court adopted the lodestar method for proving reasonable and necessary attorney fees when seeking an award under a fee-shifting contractual or statutory provision.

The lodestar is the product of two factual determinations: the reasonable hours worked and the reasonable hourly rate for each attorney involved. 

The lodestar analysis applies to any situation in which an objective calculation of reasonable hours worked times a reasonable hourly rate can be employed.

At a minimum, the party seeking fees must present evidence of

(a) particular services performed;

(b) who performed those services;

(c) approximately when the services were performed;

(d) the reasonable amount of time required to perform the services; and

(e) the reasonable hourly rate for each person performing such services. 

That’s all fine and good when seeking an award of trial attorney fees. The prevailing party knows exactly who worked on the case, what work was done, when, and why.

What about conditional appellate fees?

 

In Texas state courts, appellate attorney fees must be established at trial, while an appeal is merely hypothetical. The who, what, when, and why cannot be known. Historically, common practice was to have a single expert testify about both trial and appellate fees, with the expert opining something to the effect that “$x would be a reasonable fee for appeal.”

This number often seemed like it was picked out of thin air.

A “Rohrmoos Guess”

Recently, in Yowell v. Granite Operating Co., ___ S.W.3d ___ (Tex. May 15, 2020), the Supreme Court clarified that the Rohrmoos framework does not apply when proving prospective appellate attorney fees because those fees have not yet been incurred. But the Court essentially required a “Rohrmoos guess”: A party seeking to recover conditional appellate fees must provide expert opinion testimony about the services it reasonably believes will be necessary to defend the appeal and a reasonable hourly rate for those services.

After Yowell, the historical approach is no longer sufficient, and continuing to follow it risks a recovery of zero appellate fees. If you need proof, see KBIDC Invs., LLC v. Zuru Toys Inc., No. 05-19-00159-CV, 2020 WL 5988014 (Tex. App.—Dallas Oct. 9, 2020, no pet. h.), in which the Dallas Court of Appeals sustained a legal-sufficiency challenge and zeroed out an appellate fee award supported only by this type of broad testimony.

Who Is Your Appellate Fee Expert?

 

Accurately predicting what a hypothetical future appeal will cost can be difficult for lawyers without significant appellate experience. 

The Supreme Court has discouraged satellite litigation surrounding attorney fees. But in high-stakes matters at least, it’s difficult to imagine that trial counsel’s appellate experience (or lack thereof) won’t become a topic of cross-examination. In many cases, that experience will be minimal. 

With unqualified trial counsel as appellate fee experts, trial judges will be inclined to slash the amount requested, even if otherwise reasonable. Worse yet, we can expect motions to strike trial counsel’s expert testimony about appellate fees, and they’ll come when it’s too late to backtrack and retain someone qualified.

After Yowell, designating trial counsel to prove up appellate attorney fees is risky. In fee-shifting situations, consider naming an experienced appellate lawyer to testify about appellate fees. Doing so will help you maximize the fee recovery and increase your chances of keeping the award on appeal.

todd smith - austin texas