Affirmed in part, Reversed and Remanded in part, and Memorandum Opinion 

filed April 23, 2019.

In the

Fourteenth Court of Appeals 

NO. 14-17-00887-CV

PAUL GETTY, Appellant 

v. 

TIM PERRYMAN, Appellee 

On Appeal from the 281st District Court 

Harris County, Texas 

Trial Court Cause No. 2015-48789 

MEMORANDUM OPINION 

This appeal arises from a final judgment after a jury verdict in favor of 

appellee Tim Perryman on his breach-of-contract claims. Appellant Paul Getty 

presents three issues: (1) whether the jury’s finding that Getty entered into an 

agreement with Perryman was supported by “no evidence,” or legally- and 

factually-insufficient evidence; (2) whether any such agreement between Getty and 

Perryman was supported by consideration; and (3) whether Perryman properly 
2

segregated recoverable from nonrecoverable attorney’s fees. We reverse only those

portions of the trial court’s judgment awarding Perryman his attorney’s fees as to 

Getty and remand for a new trial on attorney’s fees as so limited. We otherwise 

affirm the trial court’s judgment as appealed. 

I. BACKGROUND

Through Getty’s brother, Perryman was introduced to Getty and Kelly 

Williams. With the encouragement of Getty, Williams, and “their attorney” Ralph 

Abercia, Perryman invested $125,000 in connection with a proposed transaction 

involving the release and shipment of a Russian tanker of mazut oil, a type of fuel 

oil, to China. 

In a promissory note dated June 11, 2012, Williams, as president of GW 

Global, L.L.C., a Texas company located in Houston, promised to pay Perryman 

$525,000 for his “investment” within twenty days or upon closing of the “mazut oil” 

deal. If the transaction did not close, then Perryman’s $125,000 would be refunded. 

On June 12, 2012, Perryman transferred $125,000 by wire into the IOLTA account 

of Abercia. That same day, $125,000 was transferred from Abercia’s IOLTA 

account into the account of Sky Global, LLC, a Florida company. The principals of 

Sky Global were Charles Smith and Terry Feibus. 

On November 27, 2012, Getty sent an e-mail to Perryman: “Kelly and I are 

very close to giving you an exact date to give you your money. We will give you an 

extra $25,000 for all of this inconvenience. Paul.” That same day, Perryman replied 

to Getty, writing: 

Paul[,] what does very close mean like by Friday or next month[?] I feel 

as though you guys have used my money for other things th[a]n the deal 

we had for the fuel from Russia to China on the tax. I am not sure where 

my money is or what it was used for or if it was used. I would like to 

think it was sitting in an account and you guys think the deal is st[il]l 
3

working and you could send to me upon request. But that seem[s] not 

to be the case. But you will have to answer that question. As I have said 

I am interested in doing some deals but I need better answers. 

Please advise 

Tim Perryman 

[phone number] 

Two days later, on November 29, Getty wrote in an e-mail to Perryman: 

Tim, I want to assure you that we are not using your money for any 

other deals. Our Attorney sent the funds to consummate this deal. We 

have been trying for the last three months to either get the product or 

your money back. We talked to them yesterday and they promised we 

would have the money by next Wednesday. Kelly and I will pay you 

the money plus an extra $25,000 if he does not return the funds and will 

sue him for what he owes us. You are welcome to be a party to that suit. 

Believe me we are just as frustrated as you are! We are also very honest 

and will do what we say. We tried to call you to discuss the issues. We 

will keep you informed of our progress. Paul.

Perryman replied to this e-mail on January 8, 2013, writing: “Paul[,] can you update 

on the deal and my money options?” Getty replied to Perryman that he was “[i]n 

London and will call u Friday.” Getty sent another e-mail to Perryman on January 

14, writing: “Sorry, I was delayed in London. I will need to call you tomorrow as I 

am waiting for information from Charles [Smith]. Thanks for your patience! Paul.” 

Perryman responded to Getty on January 29, writing: “Hey Paul[,] hope all is well. 

I am assuming all is good for this Friday for the money. Can you wire the money to 

my account?” 

The “mazut oil” deal never closed, and Perryman never received any money 

from GW Global, Williams, Getty, or otherwise. In August 2015, Perryman brought 

suit against GW Global, Williams, Getty, and Abercia. Perryman amended his suit 

to add Sky Global, Smith, and Feibus (together, the “Florida defendants”). Perryman 

brought breach-of-contract claims against GW Global, Williams, and Getty; 
4

restitution, and breach-of-fiduciary-duty and equitable-disgorgement claims against 

Abercia and the Florida defendants; conversion claims against the Florida 

defendants; and fraud and civil-conspiracy1 claims against all the defendants. 

Perryman requested attorney’s fees under section 38.001(8) of the Texas Civil 

Practice and Remedies Code. 

GW Global filed a counterclaim against Perryman, alleging that he charged 

usurious interest in the note.2 Abercia also filed a counterclaim against Perryman, 

alleging that Perryman engaged in a “conspiracy to fraudulently blame” Abercia for 

his “failed investment.” The trial court granted Abercia’s motion to nonsuit his 

counterclaim. 

The Florida defendants did not appear. The trial court granted Perryman an 

interlocutory default judgment against the Florida defendants on liability, reserving 

its ruling on damages. 

The case proceeded to a jury trial. The jury returned its verdict, finding in 

pertinent part: 

 Williams and Perryman agreed that Williams would pay 

Perryman $125,000 if the “mazut oil” transaction failed to close;

 GW Global and Perryman agreed that GW Global would pay 

Perryman $125,000 if the “mazut oil” transaction failed to close;

 Both Williams and GW Global failed to comply with the 

agreement; 

 The sum of $125,000 paid in cash would fairly and reasonably 

compensate Perryman for his damages caused by each of 

 

1 Civil conspiracy is not an independent tort, but rather “is derivative of an underlying tort.” 

Agar Corp., Inc. v. Electro Circuits Int’l, LLC, —S.W.3d—, No. 17-0630, 2019 WL 1495211, at 

*4, *7 (Tex. Apr. 5, 2019).

2 At the close of evidence, the trial court found “as a matter of law that the contract is not 

in violation of the usury laws.” In the final judgment, the trial court stated that GW Global’s 

counterclaim was dismissed on the merits.
5

Williams’s and GW Global’s failures to comply;

 In November 2012, Getty agreed with Perryman that Getty 

would pay $150,000 to Perryman if the funds paid by Perryman 

were not returned to him; 

 Getty failed to comply with the agreement; 

 The sum of $150,000 paid in cash would fairly and reasonably 

compensate Perryman for his damages that resulted from Getty’s 

failure to comply; 

 A relationship of trust and confidence existed between Perryman 

and Abercia at the time Perryman transferred funds to Abercia’s 

trust account and Abercia transferred the funds out of his trust 

account, but Abercia did not fail to comply with his fiduciary 

duty to Perryman; 

 None of the defendants committed fraud against Perryman at the 

time he contributed funds for the “mazut oil” transaction; and

 $80,000 was a reasonable fee for the necessary services of 

Perryman’s attorney for preparation of trial and through 

completion of trial-court proceedings, $10,000 for representation 

through appeal to the court of appeals, and $10,000 for 

representation through oral argument and completion of 

proceedings in the Supreme Court of Texas. 

Getty filed a motion to disregard the jury’s findings related to the November 2012 

agreement and Perryman’s attorney’s fees. The trial court denied Getty’s motion. 

On October 18, 2017, the trial court signed its final judgment consistent with the 

jury’s findings.3

 

3 The final judgment awarded Perryman $217,517.11 in damages ($125,000), prejudgment 

interest ($12,517.11), and Perryman’s “reasonable attorney’s fees through trial” ($80,000),

imposed jointly and severally against GW Global, Williams, and Getty. The conditional awards 

for appellate attorney’s fees likewise were imposed jointly and severally against GW Global, 

Williams, and Getty. GW Global did not appeal. Williams voluntarily dismissed his appeal.

The final judgment also awarded Perryman $27,503.42 in additional damages ($25,000) 

and additional prejudgment interest ($2,503.42), imposed only against Getty. 

The final judgment incorporated the interlocutory default judgment against the Florida 

defendants and awarded Perryman $387,517.11 in damages ($125,000), prejudgment 
6

Getty filed a motion for new trial, which was overruled by operation of law. 

Getty timely appealed. 

II. ANALYSIS

A. The jury’s finding that a November 2012 agreement existed between Getty 

and Perryman 

In the charge, the jury was asked: “In November 2012, did Paul Getty agree 

with Tim Perryman that Paul Getty would pay $150,000 to Tim Perryman if the 

funds paid by Tim Perryman were not returned to Tim Perryman?” The jury 

answered, “Yes.”4

In his first issue, Getty argues there is no evidence, or the evidence was 

legally- and factually-insufficient to support this finding. Primarily, Getty contends 

even if the two emails he wrote to Perryman on November 27 and 29, 2012, 

constituted an offer or offers that Getty would pay Perryman $150,000, Perryman 

did not sufficiently accept such offer. 

Contrary to Getty’s position, the e-mail string between Getty and Perryman 

does not “as a matter of law” or “unequivocally establish” that “there was no 

November 2012 agreement between Perryman and Getty.” Getty relies on Jatoi v. 

Park Center, Inc., 616 S.W.2d 399 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.). 

We find Jatoi distinguishable. Jatoi involved a situation in which the stock in Park 

 

($12,517.11), and exemplary damages ($250,000). The Florida defendants did not appeal. 

4 Getty points out that “[i]n his pleadings Perryman characterized Getty’s November 2012 

e-mail as a ‘novation or modification’ of the [promissory note],” perhaps implying that the issue 

submitted to the jury was defective. However, Getty did not object to the charge on this basis. See 

Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (“[I]t is the court’s charge, not some other 

unidentified law, that measures the sufficiency of the evidence when the opposing party fails to 

object to the charge.” (citing Tex. R. Civ. P. 272, 274, 278, 279)). We review the sufficiency of 

the evidence to support the question the jury was asked to answer, which was not predicated on 

the jury’s answer to any question related to the note and which related to a distinct agreement 

between Getty and Perryman.
7

Center was owned by a number of doctors. Id. at 400. One doctor filed for 

bankruptcy, and Park Center purchased those shares at a creditor’s sale and then 

solicited additional investors. Id. Dr. Jatoi conveyed to the Park Center board her 

willingness to buy 7,000 shares for $7,000. Id. The board met and approved Jatoi’s 

offer, but never communicated its acceptance to Jatoi. Id. Jatoi pursued the matter 

for several months and was told the board would be in touch. Id. Three years later, 

Jatoi learned of the board’s resolution. Id. In the meantime, the shares had split two 

for one. Id. Jatoi sent the board a check for $7,000 and demanded 14,000 shares, 

writing in her letter that “the acceptance of my offer has never been communicated 

to me.” Id. However, Park Center refused. Id. The Fort Worth Court of Civil Appeals 

affirmed summary judgment in favor of Park Center, explaining:

Park Center was required to set in motion some means by which 

knowledge of that acceptance would come to Dr. Jatoi before any 

enforceable contract could arise. An acceptance which resides solely 

within the exclusive knowledge of the acceptor without being 

communicated to the offeror is ordinarily no binding acceptance. 

Id. at 401. 

Unlike in Jatoi, Perryman communicated with Getty the same day of Getty’s 

initial e-mail and just a little over a month after Getty’s second e-mail, not three 

years later. Perryman’s January 8, 2013, response to Getty requesting an “update on 

the deal and my money options” came on the heels of Getty’s offer, which did not 

contain a time of expiration. See Advantage Physical Therapy, Inc. v. Cruse, 165 

S.W.3d 21, 26 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“An offeree’s 

power of acceptance is terminated at the time specified in the offer, or if no time is 

specified, it is terminated at the end of a reasonable time.”). A few weeks later, 

Perryman e-mailed Getty that Perryman “assume[d] all is good for this Friday for 

the money” and asked if Getty could “wire the money to [Perryman’s] account.” The 
8

“deal” and “the money” in Perryman’s e-mails reasonably could have referred to 

Getty’s $150,000 offer to pay Perryman the $125,000 Perryman had paid into the 

mazut-oil deal, “plus an extra $25,000.” Perryman’s assumption that “all was good” 

for payment of “the money” by wire payment reasonably could be interpreted as his 

acceptance or confirmation of his acceptance of Getty’s $150,000 offer. We disagree 

with Getty’s contention that Perryman had to respond with “something like ‘where’s 

my $150,000?’” to constitute acceptance. See City of Houston v. Williams, 353 

S.W.3d 128, 137 (Tex. 2011) (noting that “no particular words are required to create 

a contract”); cf. Advantage Physical Therapy, 165 S.W.3d at 25 (noting lack of 

written response from offeree indicating that “this is fine,” “this is okay with us,” or 

“keep us informed” evidenced lack of acceptance). 

Moreover, at trial, both Getty and Perryman testified that Getty never 

disclaimed or disavowed the obligation to pay Perryman. See Komet v. Graves, 40 

S.W.3d 596, 601 (Tex. App.—San Antonio 2001, no pet.) (evidence that offeror 

never stated document was not employment agreement supported finding that “there 

was a ‘meeting of the minds,’ and therefore an offer and acceptance”). Getty also 

testified: “That’s what I was doing, trying to get [Perryman’s] money back.”

We also disagree with Getty’s contention that Perryman “was only trying to 

get his $125,000 back.” Although Perryman testified that he sought $125,000 in 

certain communications with Getty and Williams after Perryman found out the 

“mazut oil” transaction was not going to close, Perryman also stated that “later on” 

Getty and Williams “agreed to increase the principal payment to [Perryman] from 

125,000 to 150,000” and “were going to pay [Perryman] 150 instead of 125 because 

of the trouble they put [Perryman] through.”

Construing the evidence in the light most favorable to the jury’s verdict, we 

conclude there is legally-sufficient evidence to uphold the jury’s finding. See City of 
9

Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). Even considering all the 

evidence both in favor of and contrary to the jury’s finding, either party’s position is 

plausible. Because the evidence is not so weak such that the finding in favor of 

Perryman is clearly wrong and manifestly unjust, we also conclude the evidence is 

factually sufficient. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 

(Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). 

We overrule Getty’s first issue. 

B. Waiver of lack of consideration 

In his second issue, Getty argues that even if there had been a November 2012 

agreement between Getty and Perryman, there was no consideration to support it and 

it would not have been enforceable. Perryman responds that because Getty did not 

plead or secure a jury finding on lack of consideration, he waived the issue. 

Lack of consideration occurs when the contract, at its inception, does not 

impose obligations on both parties. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 

409 (Tex. 1997), superseded by statute on other grounds as stated in Tex. Dep’t of 

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Lack of 

consideration must be raised by a verified pleading or else it is waived. Tex. R. Civ. 

P. 93(9); see Coastal Terminal Operators v. Essex Crane Rental Corp., No. 14-02-

00627-CV, 2004 WL 1795355, at *6 (Tex. App.—Houston [14th Dist.] Aug. 12, 

2004, pet. denied) (sub. mem. op.). 

In his reply brief, Getty acknowledges he did not plead lack of consideration 

but asserts that the issue was tried by consent. Based on our examination of the 

record, we cannot agree.5

 Therefore, Getty waived this issue. 

 

5 Although Getty points to his testimony that he never received or controlled any of 

Perryman’s investment money, this does not demonstrate trial by consent of lack of consideration. 

Getty did not request submission of a jury instruction or question on consideration. And the only 
10

We overrule Getty’s second issue. 

C. Segregation of Perryman’s attorney’s fees 

Because attorney’s fees are only recoverable pursuant to a contract or statute, 

“fee claimants have always been required to segregate fees between claims for which 

they are recoverable and claims for which they are not.” Tony Gullo Motors I, L.P. 

v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006); see Kinsel v. Lindsey, 526 S.W.3d 411, 

427 (Tex. 2017) (“[A] claimant must segregate legal fees accrued for those claims 

for which attorney[’]s fees are recoverable from those that are not.”). Texas courts 

recognize a narrow exception “when discrete legal services advance both a 

recoverable and unrecoverable claim” and thus “are so intertwined that they need 

not be segregated.” Chapa, 212 S.W.3d at 313–14; see In re Lesikar, 285 S.W.3d 

577, 585 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“If a legal service 

necessary to the litigation of a claim for which attorneys’ fees are available also 

advanced a claim for which attorneys’ fees are not recoverable, then the exception 

to the general fee-segregation rule applies, and the amount of time or money that 

was reasonable to expend in performing the service need not be segregated among 

the claims it advanced.”). The burden is on the party seeking to recover attorney’s

fees to show that segregation is not required. Clearview Props., L.P. v. Prop. Tex. 

SC One Corp., 287 S.W.3d 132, 144 (Tex. App.—Houston [14th Dist.] 2009, pet. 

denied). 

 

mention during closing arguments of consideration—not lack of consideration—was by counsel 

for Perryman: 

 We told you that Mr. Perryman forebeared [sic] at that time or held back 

with going forward with legal remedies at the time. 

 [W]ith Paul Getty, relating back to the communications that he sent in 

November of 2012, to the same effect that, “Hey, we know there’s been an 

inconvenience and delay and so forth, so instead of just paying you 

$125,000, we’re going to pay you $150,000.”
11

If any attorney’s fees relate solely to a claim for which attorney’s fees are 

unrecoverable, then a claimant must segregate recoverable from unrecoverable fees. 

Chapa, 212 S.W.3d at 313. Segregation may be sufficiently established if an attorney 

testifies that a given percentage of the time worked would have been necessary even 

if the claim for which attorney’s fees are unrecoverable had not been asserted. State 

Farm Lloyds v. Hanson, 500 S.W.3d 84, 102 (Tex. App.—Houston [14th Dist.] 

2016, pet. denied). 

In his third issue, Getty challenges Perryman’s award of attorney’s fees based 

on lack of proper segregation between recoverable and unrecoverable fees. There is 

no dispute that Perryman cannot recover attorney’s fees for any claim aside from his 

breach-of-contract claims. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8). As a 

result, Perryman generally was required to segregate fees incurred in connection 

with his tort claims against GW Global, William, and Getty and against the Florida 

defendants against whom he recovered a default judgment, and in defense of GW 

Global’s and Abercia’s counterclaims. 

Counsel for Perryman testified regarding segregation of his attorney’s fees. 

“[B]ecause of” the segregation requirement, counsel for Perryman explained he 

made an adjustment to his total amount of fees of “approximately 5 percent . . . to 

represent the attorney time that had to be spent on preparing the defense to the 

counterclaims versus the attorney time spent on the actual preparation of the breach 

of contract claim.” Counsel for Perryman further testified that “[i]t is impossible in 

this case to segregate the fees incurred in the breach of contract claim from the fees 

incurred in the fraud, conspiracy and breach of fiduciary claims because everything 

is very closely intertwined in one set of facts.” 

On cross-examination, counsel for Perryman acknowledged that it was 

possible to segregate out certain time he spent to obtain a default judgment against 
12

the Florida defendants. Counsel for Perryman agreed that at least four time entries 

and part of a fifth one involving “bulk billing” were capable of adjustment. Counsel 

for Perryman further admitted that he did “[n]ot really” try and made “no major 

effort” to segregate and identify the services he performed in furtherance of the 

contract claims as opposed to the tort claims. Counsel for Perryman stated that 

making adjustments for segregation “would not be feasible in this case . . . because 

I would be spending more time dividing up time entries than representing the client.” 

Getty objected to submission of the jury question on attorney’s fees based on lack 

of proper segregation and included this objection in his motion to disregard jury 

findings. 

While counsel for Perryman made reasonable efforts to segregate and 

provided evidence that five percent of his fees was for work on the defense of 

counterclaims, see Hanson, 500 S.W.3d at 102, he did not make similar reasonable 

efforts to segregate his fees for work on Perryman’s tort claims. For example, even 

though counsel for Perryman admitted, based on his invoice, that it was possible to 

segregate time entries solely relating to the Florida defendants, counsel for Perryman 

did not do so.6

 Moreover, counsel for Perryman did not offer testimony that all the 

legal services which advanced the unrecoverable tort claims also advanced the 

recoverable contract claims. See Lederer v. Lederer, 561 S.W.3d 683, 703 (Tex. 

App.—Houston [14th Dist.] 2018, no pet.). According to counsel for Perryman, even 

his time spent on “major projects” such as responses to Getty’s and Abercia’s 

no-evidence motions for summary judgment, which motions only concerned Perry’s 

unrecoverable tort claims, could not be segregated because they involved “briefing 

one set of facts that were very intertwined.” “But, intertwined facts alone do not 

 

6

In addition, the invoice contains other entries that either solely involved services related 

to the claims against the Florida defendants or contained such discrete services as part of “bulk 

billing.”
13

make fees for unrecoverable claims recoverable.” Id.; see Milliken v. Turoff, No. 14-

17-00282-CV, 2018 WL 1802207, at *4 (Tex. App.—Houston [14th Dist.] Apr. 17, 

2018, no pet.) (mem. op.) (testimony that counsel “had not segregated fees among 

the various causes of action alleged because ‘they’re all based on the same set of 

facts, the same issues’. . . has not been the proper standard since Chapa was 

decided”). Finally, counsel for Perryman admitted that he did not really try to 

segregate Perryman’s unrecoverable fees on his tort claims from his recoverable fees 

on his contract claims. In other words, counsel for Perryman failed to perform an 

inquiry sufficient to determine that an exercise in segregation was impossible. 

Perryman responds that his post-judgment remittitur of $18,425 of the 

$80,000 attorney’s-fee award through trial cured any error and essentially moots any 

complaint about such award. Getty notes that he did not accept or consent to this 

remittitur. However, even presuming without deciding that such a cure could be 

accomplished by remittitur by either the trial court or by this court, Perryman’s 

notice of remittitur provided no explanation of how the amount to be remitted was 

determined or supported segregation of unrecoverable attorney’s fees. 

Chapa guides our determination here: “[W]hen, as here, it cannot be denied 

that at least some of the attorney’s fees are attributable only to claims for which fees 

are not recoverable, segregation of fees ought to be required and the jury ought to 

decide the rest.” 212 S.W.3d at 314. On this record, we therefore sustain Getty’s 

third issue. Because Perryman presented some evidence regarding the total amount 

of attorney’s fees he incurred, he did not forfeit his right to recover attorney’s fees 

by failing to properly segregate them. See id.

III. CONCLUSION

Accordingly, we reverse the portions of the trial court’s judgment awarding 
14

Perryman attorney’s fees as to Getty,7 affirm the remainder of the judgment as 

challenged on appeal, and remand the case to the trial court for a new trial limited to 

reasonable and necessary attorney’s fees as to Getty. See Tex. R. App. P. 43.2; 

Prudential Ins. Co. v. Durante, 443 S.W.3d 499, 515 (Tex. App.—El Paso 2014, 

pet. denied) (reversing and remanding appellate attorney’s fees where appellant was 

successful on segregation issue). 

 /s/ Charles A. Spain 

 Justice 

Panel consists of Justices Christopher, Bourliot, and Spain. 

 

7 GW Global and Williams did not appeal the final judgment. Therefore, the attorney’s-fee 

awards to Perryman imposed jointly and severally against GW Global and Williams, remain intact.