March 30, 2015

 

Keith E. Hottle, Clerk 

Fourth Court of Appeals 

Cadena-Reeves Justice Center 

300 Dolorosa St., Suite 3200 

San Antonio, TX 78205 

 Re: Randy K. Smith v. Lawrence Reid, et al., No. 04-13-00550-CV

 

Dear Mr. Hottle: 

Please direct this letter brief to the Court, which is reviewing Appellant Randy 

Smith’s Motion for Reconsideration En Banc. 

Appellees’ Letter Reply to Appellant’s Reply In Support of 

Motion for Rehearing/Reconsideration En Banc 

Appellees, the Reids, present this letter brief to the Court, to correct Smith’s 

incorrect statements pertaining to the record and relevant law. 

Contrary to Smith’s contention, he may only contest the attorney’s fee award’s 

legal sufficiency on appeal; all other complaints were waived in the trial court. 

Appellee’s Reply at 1-2. As the Panel noted in its opinion, Smith made no 

complaint about the amount of the attorney’s fee award established by the 

itemized invoices introduced into evidence. Panel Op. at *20. Further, Smith 

failed to file a motion for new trial or other post-trial motion complaining about 

the attorney’s fee award. See Hall v. Hubco, Inc., 292 S.W.3d 22, 33 (Tex. App.—

Houston [14th Dist.] 2006, pet. denied). The Panel correctly determined that 

Smith waived his complaints pertaining to the trial court’s calculation of 

attorney’s fees. Panel Op. at *20. 

__________________________________________________________________

309 Water Street, Suite 114 • Boerne, TX 78006 

P: 830.816.5487 • F: 866.786.4777 (Toll Free) 

www.RogersMooreLaw.com 

Civil Appellate Law

Stephan B. Rogers 

steve@rogersmoorelaw.com

ROGERS & MOORE, PLLC

Attorneys & Counselors at Law

ACCEPTED

04-13-00550-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

3/30/2015 2:56:34 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 3/30/2015 2:56:34 PM KEITH E. HOTTLE Clerk
Further, Smith mischaracterizes the trial court’s Conclusions of Law No. 1 & 2 

concerning breach of covenant as finding of facts. Appellee’s Reply at 4 (citing 3 

CR 660). Smith apparently hopes the Court will read these conclusion of law as a 

factual finding that the Reids incurred attorney’s fees solely in connection with 

their breach of covenant claim. However, the conclusions of law say no such 

thing. They do not say that the Reids incurred attorney’s fees only in connection 1

with their breach of covenant claim. Nor do the conclusions say that breach of 

covenant is the only legal theory upon which the attorney’s fees award may be 

based. The conclusions cited by Smith simply do not bear the weight of his 

arguments. 

To the contrary, the trial court’s legal conclusions contain conspicuous signs that 

the trial court awarded attorney’s fees based on both § 38.001 and the 

“discretionary powers” conferred by the Declaratory Judgments Act to award 

attorney’s fees that are deemed “equitable and just.” 3 CR 648 (judgment); 3 CR 

663 (conclusion of law 22). Smith suggests that the Panel should ignore these 

signs, but they speak too plainly not to be heard. 

As the Panel correctly determined, this Court is not constrained to the legal 

theory identified by the trial court in its conclusions of law if any pleaded legal 

theory supports the judgment. Panel Op. at *19. The actual finding of facts 

relating to the attorney’s fee award, findings 39 and 40, have not been challenged 

by Smith and are amply supported by the evidence. 3 CR 659-660 (judgment). 

Smith’s arguments are intended to distract this Court from his failure to preserve 

error at trial and adequately raise a legal sufficiency challenge to the attorney’s 

fees award on appeal. Smith repeatedly argues that there was evidence that only 

10% of Reid’s attorney’s fees were incurred pursuing the breach of contract claim. 

Appellee’s Reply at 6. This was merely some evidence of the appropriate award, 

which the trial court obviously disregarded. 3 CR 659 (findings of fact 39 and 40). 

Despite extensive briefing, Smith has yet to suggest any valid basis for disturbing 

the trial court’s findings that the Reids were entitled to recover $79,171.30 and 

$20,000.00 in reasonable and necessary attorney’s fees for trial and appeal, and 

that awarding the fees to the Reids was fair and equitable. 3 CR 659-660. These 

findings were amply supported by the theories of recovery pleaded by the Reids. 

The Panel correctly rejected Smith’s arguments, and the arguments have not 

acquired any merit by being repeated to the entire Court. Smith’s motion for 

reconsideration en banc should be denied. 

 The trial court framed the statements as legal conclusions; they were not intended to 1

be construed as factual findings. Unlike a finding of fact, no deference to the fact finder 

is afforded to a conclusion of law. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) 

(per curiam); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 

2002).

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 Sincerely, 

 // Stephan B. Rogers 

 SBN 17186350 

CERTIFICATE OF SERVICE 

I certify that this document was served on the attorney listed below by email on 

March 30, 2015: 

Kimberly S. Keller 

Shane J. Stolarczyk 

234 W. Bandera Rd., #120 

Boerne, TX 78006 

kim@kellsto.com 

 // Stephan B. Rogers

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