1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO . 09
- 12
- 00 061
- C V



### ____________________

JOE WARE , Appellant
V. UNITED FIRE LLOYDS , Appellee

_______________________________________________________ ______________ On A ppeal from the 260th District Court Orange County, Texas Trial Cause No . D
- 100048
- C

________________________________________________________ _____________ MEMORANDUM O PINION Joe Ware appeals from the trial court’s award of attorney fees and court
costs in a property insurance dispute. He argues the trial court erred in awarding him only $3,133.20 in attorney fees

. H e claims he proved attorney fees of $133,497.00 , and asks this Court to render a judgment awarding him that amount. He does not ask that the case be remanded. Ware also contends the award for court costs failed to include all taxable costs. W e conclud e Ware is not entitled to the judgment he requests on appeal.2 I KE AND R ITA Ware owned two commercial properties in Orange County at the time of
Hurricane Rita in 2005 and Hurricane Ike in 2008. After Hurricane Rita, but before Hurricane Ike, Ware filed a lawsuit on an insurance claim for damage to the propert ies during Hurricane Rita

. See In re Acceptanc e Indem. Ins. Co. , No. 09

- 08

- 033

- CV, 2008 WL 659438 (Tex. App.

— Beaumont Mar. 13, 2008, orig. proceeding). He was paid $146,170.85

. After Hurricane Ike, Ware filed a claim with United Fire Lloyds , his new insurance carrier , for damage to the same properties

. Ware made a written pre

- suit demand of $187,121.51. Lloyds paid Ware $12,197.81 on the Ike claim. Ware sued Lloyds for breach of contract, breach of the duty of good faith and fair dealing, violations of Chapters 541 and 542 of the Texas Insurance Code, and violations of the Deceptive Trade Practices Act. With the exception of the breach of contract claim, the jury re jected his claims. T he jury awarded Ware $7,833.01 in damages for breach of contract

. In addition to the damages found by the jury, the trial judge awarded Ware $4,300.27 in statutory interest penalty under the Texas Insurance Code and $713.56 for prejudgm ent interest. Neither party challenges the jury’s verdict.3 F INDINGS OF F ACT The parties agreed to submit the issue of attorney fees to the trial court. The court awarded $3,133.20 for attorney fees, and $333.00 for court costs. In its findings of fact and conclusions of law , t he trial court found that Ware’s written settlement demand for damages to both properties was $187,121.51, which included attorney fees “calculated on the basis of a 40% contingent fee contract with the [p] laintiff.” The findings reflect that the parties later submitted the case to mediation. Ware’s settlement demand then was $251,559.64, subsequently reduced to $245,000.00. Lloyds offer ed to settle the claims for $9,653.00

. T he offer was rejected

. T he case proceeded to trial

. T he trial court found that Ware and his attorneys “acted unreasonably and in bad faith in claiming damages from [ H ] urricane Ike when those damag e s had been caused by either flooding [excluded under the policy] or by [ H ] urricane Rita, and such a claim constitu ted an excessive demand and was unreasonable.” The trial court further found that “[p] laintiff stated under oath that his properties had suffered no flood damage s as a result of [H] urricane Ike.” “Th is statement was not true, and it was undisputed that the property had been subjected to flooding of up to 18 inches in one building and 24 inches in another building.” The court also found that Ware’s attorneys “submitted a statement for attorney fees in an amount4 of $133,947.00 based on various hourly rates [ , ] ” and that Ware’s “original demand letter requested attorney fees based upon a 40% contingent fee contract with [Ware].” The court found that the “excessive and unreasonable demands caused unnecessary and excessive litigation costs, including attorney fees and court costs.” Ware challenges the trial court’s finding

-- that his damages claim was
unreasonable and in bad faith

-- though he acknowledges that the settlement demand included flood damages which were not recoverable under the policy with Lloyds. Ware asserts that th e inclusion of the flood damages in the settlement demand was a mistake, and he states that Lloyds was made aware of the mistake long before trial. There is evidence in the record, however, that Ware’s attorney and his expert met “the w eek before trial” to remove flood damages from the estimates, and that the expert did not remove each item that he considered to be damage s caused by flood waters until the middle of trial. Moreover, Ware had stated under oath in a discovery response that his properties had suffered no flood damages as a result of Hurricane Ike. He does not dispute the trial court’s finding that this sworn statement was not true. The trial court also heard evidence that a portion of the damages sought by Ware in his demand letter were the result of Hurricane Rita or pre

- existing leaks to the property.5 A TTORNEY F EES Ware argues that Lloyds stipulated at trial to Lloyds’ untimely payment of
the claim

. He contends he is entitled to attorney fees as a matter of law under both the breach of contract claim and the prompt payment provision of the Insurance Code. See Tex. Ins. Code Ann. § 54 2 .058 (West Supp. 2012), § 54 2 .060 (West 2009) ; Tex. Civ. Prac. & Rem. Code Ann

. § 38.001 (West 2008). Arguing that the attorney fees sought by Ware are excessive, Lloyds raised the defense of “excessive demand” with the trial court , and asserts that the fees sought by Ware are unreasonable and, in part, unnecessary. See Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc ., 176 S.W. 3 d 307, 318 ( T ex. App.

— Houston [1st Dist.] 2004, pet. denied) (excessive demand). Ware argues the excessive demand doctrine does not apply

. Whether or not the excessive demand doctrine applies, the attorney fees awarded must be reasonable and necessary. A party seeking to recover attorney fees carries the burden of proof. See Smith v. Patrick W.Y. Tam Trust , 296 S.W.3d 545, 547 (Tex. 2009). E ven when the testimony on fees is not contradicted by any other witness , the fees sought may be unreasonable. See i d

. at 547

- 48. In Tam
Trust , the jury awarded $65,000 in damages, approximately one

- third of the damages sought by the plaintiff, but failed to award any attorney fees. Id . at 546.6 The trial court granted JNOV on the attorney fees and awarded $7,500 instead. Id

. at 546

- 4 7. The appeals court vacated the attorney fees award and rendered judgment for $47,438.75 in attorney fees. Id . at 547. Relying on two earlier cases,
t he Supreme Court found the fee awarded by the appeals court to be unreasonable and stated that the factfinder had to consider , among other things, the amount of money involved and the results obtained

. Id . at 548 ( citing Arthur Andersen & Co. v. Perry Equip. Corp. , 945 S.W.2d 812, 818 (Tex. 1997) and Ragsdale v. Progressive Voters League , 801 S.W.2d 880 , 881 (Tex. 1990) )

. In this case, t he jury awarded $7, 833.01 in damages. Ware does not contest
th e jury’s determination of the value of the claim. Ware ask s for $133, 947.00 in attorney fees. While acknowledging he signed a contingency fee agreement with his attorney, Ware nonetheless argues he is free to pursue an award of attorney fees
based either on the contingency fee agreement or on what he calls a “ per diem ” basis.
In Tam Trust , the Texas Supreme Court cited Farrar v. Hobby , 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), which held that “‘the degree of the plaintiff’s overall success goes to the reasonableness’ of a fee award” and “‘the most critical factor’ in determ ining the reasonableness of a fee award ‘is the degree of success obtained.’” Tam Trust , 296 S.W.3d at 548 (quoting Farrar , 506 U.S. at7 114 (citations omitted)). Although the amount of the fees requested by Ware was reflected on time sheets and affidavits, the trial court determined the amount requested w as unnecessary in view of the circumstances of the case , and unreasonable

. See Tam Trust , 296 S.W.3d at 548. An appellate court reviews a trial court’s award of attorney fees for abuse of discretion. See Bocquet v. Herring , 972 S.W.2d 19, 20

- 21 (Tex. 1998)

. An appellate court may conclude a trial court abuses its discretion if a trial court’s decision is arbitrary, un reasonable, and without reference to guiding principles, or
if the court rules without supporting evidence. Unifund CCR Partners v. Villa , 299 S.W.3d 92, 97 (Tex. 2009). A trial court’s determination that cl aimed hours or fees are excessive, duplicative , or unreasonable is given considerable deference

. See generally E 1 Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 758

- 64 (Tex. 2012).
Th e trial court heard the testimony along with the jury. When confronted with conflicting evidence, a factfinder sometimes rationally may choose to believe one witness and disbelieve another, m ay resolve inconsistencies in the testimony of any witness, or may reject expert testimony. See City of Keller v. Wilson , 168 S.W.3d 802, 819

- 20 (Tex. 2005). The trial court in this case considered the evidence and resolved the conflicts against Ware. T he trial court found that Ware’s claim for attorney fees w as excessive and unreasonable , and largely unnecessary.8 Under the circumstances, we see no abuse of discretion by the trial court. We cannot conclude on this record that Ware is entitled to the judgmen t he requests on appeal.
C OURT C OSTS W are argues the court costs a ward fails to include additional necessary items, including costs of deposition transcripts and mediation fee s. Rule 131 of the Texas Rules of Civil Procedure states, “The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.” Tex. R. Civ. P. 131. Rule 141 states, “The court may, for good cause , to be stated on the record, adjudge the costs otherwise than as provided by law or these rules.” Tex. R. Civ. P. 141. The allocation of court costs under Rule 141 is a matter for the trial court’s
discretion and will not be overturned on appeal unless the trial court abused its discretion. Rogers v. Walmart Stores, Inc. , 686 S.W.2d 599, 601 (Tex. 1985)

. Good cause is determined on a case

- by

- case basis. Id

. When the prevailing party unnecessarily prolong s the proceedings, unreasonably increase s costs, or d oes something that should be penalized , good cause may exist to “adjudge the costs

o therwise” under Rule 141. See Furr’s Supermarkets, Inc. v. Bethune , 53 S.W.3d 375, 377 (Tex. 2001). T he trial court ’s findings in this case demonstrate good9 cause to adjudge court costs differently than that sought by Ware

. W e see no abuse of discretion by the trial court. T he trial court’s judgment is affirmed

. 1
AFFIRMED.

________________________________ DAVID GAULTNEY Justice Submitted on December 13, 2012 Opinion Delivered May 9 , 2013 Before McKeithen, C.J., Gaultney and Horton, JJ.

1 Because we affirm the judgment, we need not address the is sues raised in the conditional cross - appeal.