### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00120- CV

The State of Texas; The City of Garland, T exas; and the Transit Authority of Dallas MTA, Texas, App ellants

v. Ke vin B uchanan , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-1 6-0 0518 1, H ONO RAB LE TIM SULAK , JUDGE P RESIDING

O P I N I O N

A jury found that Appellants the State of Texas; the City of Gar land, Texas; and the Transit Authority of Dall as M T A, T ex as, (collectively , the S tate) were entitled to preva il on their respe ctive state, municipal, and transit-authority sales-ta x claims ag ainst appellee Kevin Buc hanan. The trial court rende red a judgme nt per the jury ’s verdic t. Howeve r, the trial court’s judgme nt did
not awa rd the State any attorney ’s fee s. The State appea ls that portion of the judgme nt, arg uing that

an awa rd is mandatory

. See Tex. Gov’t Code § 2107.006 (“I n any proce eding under this chapte r or other law in which the state seeks to collect or rec over a delinquent obliga tion or damages , t he attorney g ener al may rec over rea sonable attorney fee s, investiga tive costs, and court costs incurre d

on behalf of the state in the proce eding in the same m anner as provided by g ener al law for a private litigant.”)

. We ag ree with the State and will reve rse the portion of the trial court’s judgme ntawa

rding the State no attorney ’s fee s and rema nd the issue of attorney ’s fe es fo r a new trial. We aff irm the trial cour

t’s judgme nt in all other respe cts.

BACK GR OUND The State filed a lawsuit ag ainst Buc hanan for delinquent sales- and use-tax liability in his capa city as t he court-appointed rece iver for a piz z a re s t au ra nt, Br ookly n’s Firewhe el, L L C. See Tex. Tax Code § 111.016(a) (“A ny person who re ce i v es o r collects a tax or any money repr esente d to be a tax from another person holds the amount so collecte d in trust for the benef it of the state and is liable to the state for the full amount collecte d plus any acc rued penalties and interest on the amount collec ted.”) . Specifica lly , the State’s petition a lleg ed that Buc hanan, a s rec eiver of Br ookly n’s Firewhe el s ince 2015, “collec ted t rust fund sales and use taxes and filed sales and use tax returns with the Comptroller

. . . but failed to remit those sums to the Comptroller” and the sums had rema ined unpaid “despite demand for pay ment.” The State soug ht judgme nt ag ainst Buc hanan for $22,114.41, $3,788.24, and $ 3 , 7 8 8

. 2 4 for unpaid state, municipal, and transit-authority sales and use taxes, re spectively

. The State pleade d that it was entitled to attorney ’s fee s and pray ed for their re cover

y . See Tex. Gov’t Code § 2107.006. At the close of evidenc e, the trial court s u b m i t t ed questions to the jury including the following : “What is a rea sonable fe e, if a ny , for the ne cessa

ry service s of the State’s a ttorney , stated in dollar s and cents? ” The jury answe red “0” to the question. The jury also answe red “No”
to the following question: “Did the Def endant, Kevin Buc hanan, conclusively es tablish that the Certifica te of the Comptroller of Public Acc ounts for Br ookly n’s Fire whee l, L L C, for the tax period, Fe bruar y 1, 2016 throug h J uly

31, 2016, admitted as Plaintiff’s Exhibi t 1, is incorre ct? ” See Tex.

2Tax Code § 111.103 (stating that Comptroller’s cer tificate of delinquency is prima fa cie e vidence of amount of tax, interest, and penalties that are delinquent). Be fore the court rende red its judgme nt, t h e S t at e fi l ed a motion to disreg ard the jury ’s finding on attorney ’s fee s or, in the alterna tive, a motion for new trial, asser ting that the jury ’s finding had no support in t h e evidenc e, see Tex. R. Civ. P. 301, and that an awa rd of attorney ’s fee s was statutorily mandated, see Tex. Gov’t Code § 2107.006. The trial court rende re d j u d gm en t awa rding the State the damag es it soug ht, per the jury ’s verdic t as to the Comptroller’s delinquency cer tificate, but did not awa

rd any attorney ’s fee s. The State filed another motion for new trial on the issue of attorney ’s fee s, rea sserting that they are statutor i l y m an dated and contending that the evidenc e was fac tually insufficient to support the jury ’s ver dict on attorney ’s fe es. The tr ial court de nied the motion. The State appe als.

DISCUSSIO N I n its first issue, the State contends that the jury lacke d discretion, as a matter of law,
to find that the S tate did not incur any rea sonable a nd nece ssary attorney ’s fees because the State,

as the preva iling party , was entitled to its fee s under section 2107.006 of the Gover nment Code. See id. The State c ontends that an a war d of attorne y ’s fe es is mandatory under this sec tion. Bu ch anan responds that the State failed to prese rve this complaint beca use it did

n o t ob je c t to s u b mi s s io n o f th e ju r y q u e s ti o n o n th e is s u e o f

a tt o r n e y ’ s f e e s , w h ic h

r e a d : “ Wh a

t i s a

rea sonable fee , if any , for the nece ssary service s of the State’s attorney , stated in dollars and cents? ” (Emphasis added.) Specifica lly , Buc hanan contends that the question’s use of t h e co nditioning lang uag e “if any ” aff

orded the jury discretion to r efuse to a war d any attorney ’s fe es and instruc ted the jury that a fee awa

rd was not mandatory ; there fore , he continues, the State cannot complain
3about the question on appe al beca use it did not obje ct to the possibili ty —raised by

the question as submitt ed

— t h at t h e jury could find that no attorney ’s fee s wer e rea sonable and nece ssary . We conclude that the State did not waive its contention that an attorney ’s-fe es awa rd is mandatory under se ction 2107.006.

The a vailability

of attorne y ’s fe es under

a par ticular statute is a question of law for the court and, there fo re , a “jury ’s finding about the amount of rea sonable attorney ’s fee s is immaterial t o t h e u ltimate leg al issue of whether such fee s are rec overa ble under [a particula

r statute.]” Holland v. W

al-Mart Stores, Inc. , 1 S.W .3d 91, 94 (Tex. 1999) (holding that party did not waive its contention that attorney ’s fee s wer e not available under p ar ticular statute by failing to object to submissi on of

jury question). “A jury can deter mine the amount of attorney ’s fee s whether

or no t they can be rec overe d under the theory of law submitt ed to the jury ,” id. , which is what

occur red here

. Fur

thermore , the State asser

ted its claim that an awa

rd of fee s i s mandatory in its motion to disreg ard and alterna tive motion for new trial, which g ave the trial court ample oppo rtunity to rule on the a vailability of fe es bef

ore a n err oneous judg ment was re ndere d. Id. The supreme court has deter mined that statutes such as the one at issue, pro viding th a t a p a r ty “ ma y r e c o v e r ” a

tt o r n e y ’ s f e e s , a r e n o t d is c r e ti o n a

r y . S e e I n r e B e n t , 4 8 7 S. W. 3 d 1 7 0 , 1 8 4 (Tex. 2016) (re cog nizi ng that section 541.152 of I nsuranc e Code, providing that preva iling plaintiff “may obtain” r e a s o n a

b le a n d n e c e s s a

r y a ttorney ’s fee s, “re nders an attorney ’s-fe e awa rd mandatory ,” provided plaintiff meets burden to establish fee s are “re asonable and nece ssary ”); Ventling v. Johnson , 466 S.W .3d 143, 154 (Tex. 2015) (holding that “trial court has no discretion to deny attorney ’s fees when p re s ented with evidenc e of the s ame” under section 38.001 of C ivil Practice

4and Remedies Code, which provides that p er s on “may rec over rea sonable attorney ’s fee s”);

Bocque t v. Herring , 972 S.W .2d 19, 20 (Tex. 1998) (“Statutes providing that a party ‘may rec over,’ ‘shall be awa

rded,’ or ‘is entitled to’ attorney fee s are not discretionar y .”); see also W

eave r v. Tobin , No. 03-04-00350- CV, 2008 WL 2777487, at * 6 (T ex . App.—Aust in J uly 18, 2008, pet. denied) (mem. op.) (citing Bocque t for proposition th a t s ta tu te s providing that party “may rec over” attorney ’s fee s “a re n ot discretionar y ”); Aaron Rents, Inc. v. Travis Cent. Appraisal Dist. , 212 S.W .3d 665, 674–76 (Tex. App.—Austin 2006, no pet.) (holding that section 42.29 of Tax Code, providing that proper ty owner “may be awa

rde d rea sonable attorney ’s fee s,” is mandatory ). When a statute 1 p ro v i d es for mandatory rec overy of attorney ’s fee s, the trial court has no discretion but to awa rd them if they are pleade d and proved. See Ventling , 466 S.W .3d at 154; W eave r , 2008 WL 2777487,

a t * 6 ( c it in g H

o ll a n d , 1 S. W. 3 d a

t 9 4 )

. A p p ly in g th e r u le d e li n e a

te d b y th e s u

p r e me c o u

r t, w e h o ld th a

t section 2 1 0 7

. 006’s use of the phrase “the attorney g ener al may rec over rea sonable attorney fee s” makes an awa

rd of fee s under that section mandatory upon demand and proof there of. See Ventling , 466 S.W .3d at 154; Bocque t , 972 S.W .2d at 20; W eave r , 2008 WL 2777487, at *6. I n its sec ond issue, the State contends that the jury ’s finding of zero rea sonable and

nece ssary attorney ’s fe es is not supported by fac tually sufficie nt evidence

. See D ow Chem. Co. v. Francis , 46 S.W .3d 237, 242 (Tex. 2001) (per curia m) (noting that when p ar t y at t acks fac tual sufficie ncy of finding on which it had burden of proof, appellate court must consider and weig h all

To the extent that a prior opinion of this Court conflicts wi t h o u r h o l d i ng today , see 1 State v. Montano , 313 S.W .3d 854, 859–60 (T ex . App.—Austin 2010, no pet.) (“We believe an awa rd of attorney ’s fee s [under Gover nment Code section 2107.006] would fall within t he district court’s discretion.”) , we rec og nize that the supreme court has impliedly overr uled it

. See I

n r e B e n t , 4 8 7 S. W. 3 d 1 7 0 , 1 8 4 ( T e x. 2 0 1 6 ) ; V e n tl in g v . J o h n s o n , 4 6 6 S. W. 3 d 1 4 3 , 1 5 4 ( T e x. 2 0 1 5 )

. 5evidenc e and “ can se t aside a verdic t only if the evidence is so wea k or i f t he finding is so ag ainst

the g rea t weig h t an d p reponde ranc e of the evidenc e that it is clea rly wrong and unjust”). On this

rec ord, we must ag ree with the State.

The State’s attorney testified about many of the Arthur Ande rsen fac tors that a jury may consider in deter

mining rea sonable attorney ’s fee s, and the jury was instructed on those fac tors. See Arthur Andersen & Co. v. Perry Equip. Corp. , 945 S.W .2d 812, 818 (Tex. 1997). For example, the State’s attorney explained that State attorney s spent 270 hours on the case but that he was seeking pay ment for only 190.25 of them, which wer e the hours that h e p er s o n al l y spent on the case . He testified about his experience and explained that the case require d gre at er skill than usual and involved “novel” and difficult issues due in part to its unusual “posture” and Buc hanan’ s “zealous” defe nse of what should have been “a s i m p l e acc ounting matter” beca use Buc hanan had filed all the rele v an t re t u rn s but had simply not paid the amounts due. He explained that most sales-ta x d el i n q u ency case s g et resolved by defa ult judgme nts and that the State did not reque st a jur y trial

— Bu ch anan did—beca use jury trials ty

pically require more prepa ration and expenditure of time. He also testified that his hourly rate of $250 is b as ed o n t h e s k i l l that is require d to handle

case s of this ty

pe in Travis County and is equivalent to what simil arly experience d attorney s in the

are a would char g e. He supported his testimony with admitted exhibi ts. “Te x as courts consistently h o l d that [an] attorney ’s testimony about his experience , the total amount of fee s, and t h e

rea sonablene ss of the fee s char g ed is sufficie nt t o s u p p ort an awa rd.” Jeff Kaiser, P.C. v. State , No. 03-15-00019- CV, 2016 WL 16397 3 1 , at *5 (Tex. App.—Austin Apr. 20, 2016, pet. denied) (mem. op.).

6I n reb u t t al, Buc hanan—a board- cer tified, persona l-injury trial lawy er with about twenty -five y ear s’ ex perie nce—te stified about “wh at I t h i nk would be a rea sonable attorney ’s fee in this case .” He opined that 270 h o u rs “i s ri d iculous.” He explained that he thought the State’s attorney had “overpre par[ed] this case . . . . spending hours and hours and hours that don’t need to be spent prepa

ring for trial.” He further opined that this is a “simple, simple case ”—that if he was unable to neg ate the delinquency ce rt i fica te, the State would “win.” Buc hanan testified that he believed the most important fac tor to consider was the amount in controv er s y , which was about $25,000—“Period, the end. I t ’s m y o p inion in this case , the fee s, if any , ag ainst me should not exceed the a

mount the [ State] recover ed, $25,000 and c hang e.” Essentially , Buc hanan opined that the State’s attorney s spent too many hours on the

case ; howeve r, he did not contest that the State’s attorney s spent some amount of hours on the case

or contend that their hourly rate was too high. More importantly , he did not aff irmatively testify that

no attorney ’s service s wer e neede d or that any services p rovided wer e of no value. As a fac tual matter, a zero awa

rd for attorney ’s fee s is proper only if the evidenc e (1) failed to prove (a) that any attorney ’s service s wer e provided, or (b) the v al u e o f t h e service s provided; or (2) aff irmatively sho we d t hat no attorney ’s service s wer e neede d or that any service s provided wer e of no value. R e c o g n it io n Co m m c’ns, Inc. v. American Auto. Ass’n, Inc. , 154 S.W .3d 878, 891 (Tex. App.—Da ll a s 2005, pet. denied)

.

“Whil e t h e j u ry could have rationally conclude d that a rea sonable and nece ssary fee was less than the amount soug ht, a n awa rd of no fee s was improper in the absenc e of evidenc e aff irmatively showing that no attorney ’s fee s wer e neede d or that any service s provided wer e of no

7value.” Midland W

. Bldg., L.L.C

. v. First Serv. Air Conditi oning Contractors, Inc. , 300 S.W .3d 738, 739 (Tex. 2009). The State’s attorney testified extensively reg arding its off ice’ s time a

nd service s rende red throug hout this ca s e an d a companion proce eding in Dallas, as outlined above. Acc ording ly , we find that the jury ’s finding of “0” was ag ainst the g rea t weig ht and preponde ranc e of the evidenc e. See Exx on Corp. v. Pollman , 729 S.W .2d 302, 306 (Tex. A pp.—Ty ler 1986, writ ref ’d n.r.e.) (whe re attorney ’s-fe es jury question included same “if any ” qualify ing words at case at bar, finding that evidenc e was fac tually insufficient to support jury ’s finding of zero attorney ’s fee s

an d re m an d ing that issue for new trial). We find the State is entitled to a new trial on attorney ’s fee s. See M

idland W . Bldg. , 300 S.W .3d at 739.

CONCLUSION We reve rse the portion of the trial court’s judgme nt awa rding the State no attorney ’s f e e s a n d r e ma n d th e is s u e o f a

tt o r n e y ’ s f e e s f o r a n e w tr

ia l. We a f f ir m th e r e ma in d e r o f th e ju d g me n t.

__________________________________________ Thomas J . Ba

ker, Justi ce

Be fore J ustices Goodwin, B aker , and Smith Affir med in Part; Reverse d and Remande d in Part Filed: Mar ch 27, 2019

8