Texas Attorney Fee Litigation under the Lodestar: Data on Appellate Cases Six Months After SCOTX Decision in Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019)

15 Pages Posted: 12 Nov 2019 Last revised: 15 Nov 2019

Date Written: November 13, 2019


On April 26, 2019 the Texas Supreme Court handed down its seminal opinion in Rohrmoos v. UTSW DVA Healthcare and dramatically altered the litigation landscape in Texas by requiring lodestar-type evidence on reasonable and necessary hours and hourly rates in all attorney-fee shifting cases, whether based on contract or statute. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 2019 WL 1873428 (Tex. Apr. 26, 2019).

A few weeks later, the Court removed any doubt as to whether the same requirements applied when attorney’s fees were assessed as a sanction, and overruled contrary precedent at the intermediate appellate level. See Nath v. Texas Children’s Hospital, No. 17-0110, 576 S.W.3d 707 (Tex. June 21, 2019).

This report presents data on the impact of the new SCOTX precedent on appellate cases that were already in the pipeline. It identifies all appellate opinions citing Rohrmoos that were handed down by Texas appellate courts through October 26, 2019; and a few that should have cited Rohrmoos, but did not. The current count of citing cases stands at 18, excluding Texas Supreme Court cases.

Rohrmoos did not settle all fee-related legal questions and some of the since-decided lower-court cases are now being pursued in the Texas Supreme Court.

The open questions include the following:

1. How appellate attorney’s fees can be proven using the lodestar method at trial before they have been incurred, so as to support a contingent award in a fixed dollar amount in the judgment.

2. Whether the lodestar approach applies to claims for unpaid fees asserted by attorneys against former clients when the attorney's fee bill is disputed and remains unpaid.

3. Whether the lodestar approach applies when an attorney or law firm seeks to recover from a client in quantum meruit in a situation where there is no express fee contract, or when a contingent contract is unenforceable under Texas Government Code §82.065.

4. Whether, when a fee claim is based on Chapter 38 of the Civil Practice and Remedies Code, the trial court may make the required factual determinations concerning a fee-shifting award via judicial notice in the absence of lodestar evidence submitted by a party seeking fees under that statute.

5. Under what circumstances the amount of attorney’s fees should be decided by the jury or by the judge, and what procedural vehicle may or should be employed to establish a fee claim by affidavit rather than through live expert testimony?

6. Whether a lay witness may testify on the factual components of the lodestar methodology for valuing legal services.

7. Whether reversal and remand or rendition is the proper remedy upon a determination on appeal that the evidentiary requirements established by Rohrmoos were not satisfied.

Keywords: attorney fee litigation, Texas courts, the American Rule, fee shifting, proving reasonable and necessary attorney's fees, cost of legal services

JEL Classification: K12, K10, K20, K30

Suggested Citation

Hirczy de Mino, Wolfgang, Texas Attorney Fee Litigation under the Lodestar: Data on Appellate Cases Six Months After SCOTX Decision in Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019) (November 13, 2019). Available at SSRN: https://ssrn.com/abstract=3478442 or http://dx.doi.org/10.2139/ssrn.3478442

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