### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00059
- CV

Permit Partners, LLC; and David Cancialosi, Appellant s

v. Heidi Sauer, Appellee

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 17
- 003996, THE HONORABLE ERIC SHEPPERD, J UDGE PRESIDING

M E M O R A N D U M O P I N I O N

This case involves competing claims for breach of a mediated settlement agreement (MSA). Appellee Heidi Sauer claimed that her former employer , Permit Partners,
LLC , and su perv isor, David Cancialos i (collective ly, Permit Partners) breached the MSA by failing to timely close on the agreement

. Per the MSA, c losing required Permit Partners to make
the first of six settlement payme nts and execut e a release of its claims against Sauer

. Permit
Partners c laimed that S a uer breached the MSA by di sclosing its con fidential conten ts in her

court pleadings

. After a b e nch trial , the court rendered jud gment a ward ing Sauer damages and attorney ’ s fees and order ing that Permit Partners take nothing

. We reverse the portion of the judgment awarding Sauer attorney ’ s fees against Permit Partners , LLC . We otherwise affirm the
trial court ’ s j udgment

.2 BACK GRO UND
P ermit Partners, LLC, a permitting and code

- compliance company, and
Canci alosi sued Sauer afte r she allege d l y refused to retu rn her co mpany
- issued laptop containing proprieta r y information when her employment w ith the comp any ceased. P er mit P artners sued
Sauer for breach of contract and sought a declaratory judgmen t, damages, and attorney ’ s fee s. Sauer filed a counterclaim , asserting claims against Permit Partners for breach of contract, sexual harassment, and intentional inf liction of emotional distress.
While the cause was pending , t he parties mediated th eir dispute and executed the
MSA on June 28, 20 18. Th e MSA required Permit Pa rtners to pay Sauer $30,000 , in six equal monthly payments . It required a closing on or before August 1, by w hic h tim e Permit Pa rtners

was to make the first of the six required payments and both parties were t o execute “ a full,

c om plete a nd mutual release of all claims of any t ype whatsoever that h ave been or could be
asserted by either side against the other in the abov e
- referenced proceeding [the present lawsuit]

. ” The MSA also required the parties to “ main tain confidentiality as to t he terms of [t he
MSA ]

. . . exce pt as required by law. ”

On August 1, Permit Partners presented Sauer with a mutual release of c laims that
it drafted , which Sauer signed and t endered to Permit Partners for its si gnature. When Permit
Partne rs di d not make the first re quired p ayment or execute the release of claims , S auer filed her
third amended counterclaim , in which she added a claim against Permit Part ners for alleged
breach of the MSA by failing to dismiss its lawsuit and tender the r equired p aymen t

.

Permit Partners then amended its pet ition, a dding a cl aim that Sauer breache d
the MSA by disclosing its payment terms in violation of its c onfidentiali ty provision when she
revealed those terms in her filed counterc laim

. Permit Partners sought a decl aration that , as a3

res ult of Sauer ’ s breach, its “ payment obl igations under the MSA have ce ased. ” Permit Partne rs also added a fraud claim, all eging that Sauer “ know ingly an d in te ntionally fa i led to disclose that she had filed a wage

- and

- hour disput e with the DOL [Depart ment of Labor] prior to negotiating [the MSA] , ” which induced it to e xecute the MSA. Both Sauer and Permit Part ners filed mo tio ns fo r summary judgment, which the trial court denied.

The parties sub sequently by Rule 11 agreement wa ived a jury t rial and provided

t hat the bench trial woul d be l imited to th e claims related to the MSA and that all evidence would
be documentary onl y
. A fter tr ial , t he trial c ourt rendered a final judgmen t in Sauer ’ s favor, determining that she was enti tled to r ecover from Permit Par tners un der the MSA and award ing
her $30,0 00 in damages and $12, 606 in atto rney ’ s fees ( plus mor e in the event of uns ucce ssful appeals by Permit Partners) . T he trial court issued a mended findings of fact an d conclusions of
l aw after Permit Partners filed objections to the original findings and conclusions. In part, the
trial court determined tha t P er mit Partners “ brea ched the MSA by failing to make the r equired payment on August 1, 2018 ” and that Sauer “ performed on and did not breac h the MSA. ” The

t rial court rejected Permit Partners ’ s request for a decla ration that Permit Partners ’ s payment
ob l i gatio ns under the MSA had ceased. Permit P artn ers filed a mot ion for new trial, whi ch the
tria l court denied

.

On ap peal , Permit Partne rs contends that the trial court erred in rendering a judgment in favor of Sauer o n her br each

- of

- con tract claim for two ind ependent reason s
. I n addition , Permit Partners challenges the trial court ’ s award of attorney ’ s fees to Sauer.4 DIS C U S SION
T he t rial court ’

s breach
- of

- contract findings
In i ts first issue, Permit Partners conte nds that the tr ial court erred in con cludin g that Sauer did not breach the MSA 1 and , consequently, in failing to declare that Permit P artners ’ s payment obligati o n under the MSA had ceased due to Sauer ’ s breach. Specifically, P ermit
Partners contends that the undisputed evid ence establ ish es that Sauer breached the MSA by
disclosin g its contents and that such breach r el eased Permit Par tners from its payment obligation s , a s specif

i cal ly provided in the MSA :

Th e p arties agree to maintain confidentiality a s to the term s of this settlement agreement, excep t as r equired by law or for professional le gal or accounting advice. The parti es also mutually agree not to disparag e ea ch other. I f Defendant [Sauer] violates th is provision, then the P laintiffs ’ [Permit Part ners ’s] paym ent o bligation under this agreeme nt ceases.
(Emphasis added

. )

W hen the terms of a contract are clear a nd unambiguous and the facts concerning
br e ach o r pe rforman c e are undisputed or conclus ively established, the trial court dec ides, as a

matter of la w, whether the facts show per fo rm ance o r brea c h

. See Trinity Indu s., I nc. v. Ashland,
Inc. , 53 S.W .3d 852, 868

– 69 (Tex. App.

— Austin 2001, pet. denied ) ; M eek v. Bishop Peterson & Sharp, P.C. , 919 S.W.2d 805, 8 08 (Tex. App.

—Houston [14t h Dist.] 1996, writ deni ed ). Here , Permit Partne rs argues that the MSA u nambiguously require d the parties t o keep its terms

c onfidential , and that t he undi sputed evi d e nce est ablishes that Sauer disclosed material terms of
the MS A (i.e., the total s ettlement amount and th e sch edule of payments) in her co urt fi lings, which are p ubli c records. See Tex. R. Civ. P. 76a ( provi ding that “ c our t records . . . are presumed

1 T he trial cour t ’ s relevant conclu sio n of law provided, “ Defendant [Sauer ] per fo rmed on and did no t brea ch t h e MS A

. ”5

to be open t o th e general pu blic ” and definition of “ cour t records ” include s “ all d ocuments of any
nature filed in connectio n wit h any ma tter before any ci vil court ” )

. Permit Par tners points out
that u nder notice

- pleading requirements in Texas , S auer could hav e adequ atel y ple ad ed h er claim for breach of contract without disclo sing the MSA ’ s payment ter ms
. S ee First United
Pe nt ecostal Chur ch of B eaumont v. Parker , 514 S. W.3d 214, 225 (Tex. 2017) ( “ Under the [fair

notice standard for pleadings], courts consider whether t he opposin g pa rt y ‘ can a scertain from the pleading the nature and basic issues of the contr oversy and what testimony will be relevant

. ’ ” (qu oting H

orizon/ CMS Healthcare Corp. v. Auld , 34 S.W.3d 887, 896 (Tex. 2000)) ). P ermit
Partners also suggests that un der the Ru l es of Civil P roced ure, S a uer could have requested permission to file the MSA under seal , see Tex. R. Civ. P. 76a (outlin ing pr oce dure and standard for sealing court records) , but did not.

In response , Sauer contends that the trial court “ corre ctl y found tha t she
per f o rmed on and did not breach the MSA , ” including the agreement ’ s confidentiality requirement . Alternatively, Sauer argues that e ven if she di d breach the MSA ’ s confidentiality requirement , her claim for damages is not forfe ited because the fi n dings and th e evi de nce estab li sh that Permit Partners breached the MSA fir st when it failed to m ake the first payment as required on August 1, 201 8

. In effect , Sau er argues that t he for fe iture provision in the MSA , on which Permit Partners relie s, includ e s a n excepti o n for Permi t P artners ’ s pri or material breach.

In construing a contract, our primary concern is to ascertain the true intentions
of the parties as e xpress ed in the c ontract i tself. Plains Expl. & Prod. Co. v. Torch Energy Advisors, Inc. , 47 3 S.W.3d 296 , 305 (Tex . 2 015). I n doi ng so , we must favor an interpretation
that gives effect to each part of the agreement so that none of th e provisions will b e rendere d

mea ningless. Id. A lthough generally enforceable, for feiture provisions are no t fa vor ed in the6

law and a re thus strictly construed to avoid forfeiture

. S ee In re Marri age of I.C. and Q.C. , 5 52 S.W.3d 291, 296 (Tex. App.

— Dallas 201 6), aff ’d , 551 S .W.3d 11 9 (Tex. 2018 ) ( upholding appellate and trial courts ’ enforcement o f no
- c onte st f orf eit ure claus e in contr a ct that was

unam big uous and provided “ clear conse quences ”

— i.e., loss of contractual ri ght to payment

— if party violated provision ); D ewhur st v. Gulf Marine Inst

. of Tech. , 55 S.W.3d 91, 99

– 100 (Tex. App.

— Corpus Ch risti

– Edin burg 200 1, pet. denied ) ( noti ng ru le of contract c onstruction that
forfeiture p rovisio n must b e clear an d unambiguous for court to e nforce it )

. “ [W]here equities
are show n w h ich justify a continuation of the contract rather than fo rfeiture of it, the forfe iture

w ill be prevente d

. ” W.W. L aub ach T r
. v. Ge o rgetown Corp. , 80 S.W.3d 149, 157 (Tex. Ap p.

— Austin 2002, pet . denied) (qu oting T

- Anchor Corp. v. T

ravarillo Assoc s
. , 529 S .W.2d 622, 627 (Te x. App.

— Amarillo 1975, no writ)) ; see Home Reader Se rv. , Inc. v. Gr appi , 44 6 S.W.2d 95,
97

– 99 (T ex. App.

— Dall as 1969, writ ref ’ d n.r.e.) ( noting that contrac t provision for termination of contract by either party, when fairly entered into, “ will be enforced if not contrary to equity
and good conscience ” )

.

Appl ying the se pri ncip les here, w e conc lud e that i mpli c it in the MSA ’ s f orfei ture provision is an exception for just cause based on prior breach . That is, even if Sauer violates
the co nfidentiality provision, a forfeiture results o nly when Permit Partn ers has , at the time,

com plied with i t s ma ter ial obligati o ns under the MSA

. See Deep Nines , Inc. v. McAfee, I n c. , 246 S.W .3d 842, 848 (Tex. App.

— Dallas 2008, no pet. ) ( holding that because appell ant ’ s failure

to make ti mely payment under settlement agreem ent occurred before a ppel lee ’ s all ege d bre ach
of agr eemen t ’ s confid entia lit y provision by a ttaching it to its pleadings , app ellee was excused
from fu rther p er formance, and affirming summary judgment in favor of appellee tha t awarded damages in amount of un paid settlement payme nts )

. The reco r d conclu s ively shows that Permit7

Pa rtners breached the M SA b y fail ing to make it s firs t required p ayment on August 1, 2018 , and

execu t e the mutual release of cl aims , which release the trial court found Sauer had executed

. 2
The evidence al s o con clusively sh ows that Sauer ’ s alleged un la wf u l “ discl osure ” of the M SA ’ s
contents occurr ed o n August 6 , 2018 , when s h e fi le d he r third a mended cou n terclaim , a dding f or the first time a claim for P erm it Partners ’ s breach of the MSA

. Be cause Per mit Par t ners had
material ly breac h ed t he MSA be fore Sa uer filed her third amended counterclaim, S a uer ’ s fil ing

— even if a breach of the MSA

— does not result in a for feitur e of her rig ht to enf orce Permit Partners ’ s payment obl igations under t h e MSA

. See id. at 8 4 8. To hold otherwise wou l d
be “ contrary to equity and good conscience. ” See Gr appi , 446 S.W.2d at 99

. In reply , Permit P artners contends that its own prior material br each of the MSA ,

even if proven, has no impact on the issue of whe ther Sauer forfeite d her r ight to enforce Permit
P ar t n ers ’ s payment obl igations under t he MSA. In support of thi s assertion , Permit Partners
argues that because Sauer elect ed to “ co ntinue the MSA and su [ e d ] to r ec eive [ its ] bene fits, ”

s he may not re ly on the prior

- material

- b r each doctrine to argue that he r all e g ed breach of the

2 W hile th e trial court did not make a n ex press finding that Permit Partne rs ’ s breach was material, w e imply s uch a find in g from it s ju dgment an d uphold t he findin g if legally and factually sufficien t evid e nce supports it

. See Pull ey v. Mi lberger , 198 S.W.3d 418 , 4 27 (Tex. Ap p.

— Dalla s 2 006, pet. denied )

. M utual re lease of th e parties ’ claims and Pe rmi t Partne rs ’ s agree men t to ma ke the specified settlement payme nts w ere th e essence of the MSA , which ex pres sly required the parties to “ sign a full, complete and mut ual release of al l cla ims ” at closing, which was to “ occur on or before August 1, 2018

. ” P e rmit Partner s ’ s fi rs t payme nt w as also to b e made on or before c l osing. Permit Partners ’ s failure to tim ely pay Sauer the agreed

up on amount in set tlement of her clai ms and t o release i ts claims against her depri ved her of the benefit of that agreement

. On this reco rd , we c onclude th at t he eviden ce was legal ly and fa c tually suffic ient to support the tria l c ourt ’ s implied fin ding that Permit P a rt ners ’ s breach was m ater i al. Se e Mustang P ip eline Co. v. Driver Pipeline Co. , 13 4 S.W.3d 195, 19 9 (Tex. 2004) (per curiam) ( outlin ing several fa ctors significant in d e ter mining w hether b reach i s m at er ia l , inc l uding “ the extent to which the injured party will b e de prived of the b enefit w hich he rea sonab l y expecte d , ” and holding that appellee committed m aterial breach as matter o f law )

.8

confiden t iality requirement was excus e d

. See Mustang Pipeline Co. v . Driver Pipeline Co. , 13 4 S.W.3d 195, 196 (Tex. 2004) (per curiam) ( “ It is a fundamen t al pri nciple of con t ract l aw t hat when one pa rty to a contract commits a materia l breach of that contract, the other party is
di scha rged or excused from further p erf orma nce. ” )

. S peci fic all y, Permit Partners contends that by signing the Rule 11 agreemen t to limit t h e issues at tria l to o nly thos e con c erning the MSA
and b y suing to receive the benefits of the M SA, Sauer ele cted to t r eat t he contract as co ntin uing
after Permit Pa rtner s ’ s br eac h and therefore cannot no w claim to be excused from h er own obligation to pe rform under the c ontract

. See Long Tr s
. v. Griffin , 222 S.W.3d 412, 415 (Tex.
200 6 ) (per curiam) ( noting th at “ party w h o elects to treat a contra c t as c ontinuing depri ves h imse lf of any e xcuse for ceasing performance o n his own p art ” (q u oting Ha nk s v. GAB Bus.
Ser v s ., In c. , 644 S .W. 2d 707, 70 8 ( Te x . 1982)) )

. Howeve r, w e need not decide whether S auer ’ s alleged breach of the con f ident iality requirement was ex cused b y Per mit Partner s ’ s prior material
b reach or whether , inst ead, an exception to the prior

- mat erial

- b rea ch doc t rine applies h ere
. Ba sed on our constru ction of the MSA a nd the tr i al court ’ s ex press and implied findings , we

conc lude that Sauer ’ s alleged breach , even if un excused , d id not r esult in a forfei ture of her right

to enforce Perm it Partners ’ s payment obliga tion s
.

Consequentl y, even if Sauer ’ s disclosure of the MSA ’ s contents in her pleadings
consti tutes a breach

— and the trial court ’ s conclusion that she did not th e reby breach thus constitutes legal error

— we conclude that the trial court did not err in fa iling to declare that
Permit P artners ’ s payment obligation ceased or, as a result, in re ndering judgment for Sauer. 3

3 P er the parties ’ Rule 11 agr eement, t h ey each filed trial briefs with attac hed documentary evide nce . In its pra yer fo r reli e f , Permit Par tn ers sought a declar atory judgment that “ no payment is owed [by Permit Partners under the MSA] because Sauer materially breached the MSA . . . by breachin g her confiden tia lity obligation . . . by disclosing the9

See T ex. R. App. P. 44 .1(a) ( “ No judgment may be reversed on a ppeal on the ground that t h e trial court made an error of law unless the cou rt of appeals conclude s that th e error complained
of : ( 1 ) p robably c aused the re ndition of a n im proper judgment ; or ( 2) pr obably prevented
the appellant from proper ly presenting th e case to the court of app e als. ” ). W e overrule Per mit
Partner s ’ s first issu e
.

W e next cons ider P ermit Pa rtners ’ s s econd contention

— t hat the trial court erred in concluding that Permit Partners breached the MSA because the evidence establishes that its
breach was excus e d by S a u e r ’s prior alleged frau d i n failing to dis close a “p endi n g ” DOL claim
and t he n fail in g to “withd raw ” th e claim as requ ired by the MSA

. While the evi d ence

c on clus ively s h o ws tha t S auer did not disclose tha t she had p revi ously filed a DOL claim unt i l
after s he executed the MSA, t he evidence als o con cl usive ly sho w s t hat th ere was n o p endin g DO L claim w hen the MSA was execut ed bu t , rather, that the DOL ha d previ ously conclud e d
Sauer ’ s cl aim on Nove mbe r 3, 2017

— far i n advance of the MSA ’ s execution. 4 A ccordin g l y, t he
trial court did no t e rr by i m p liedly findi ng tha t Pe rmit Partners ’ s br each wa s not exc used by
S auer ’ s failur e to d i sclose or w ithdraw the c o n c lude d DOL cl aim. W e overru le Permit Partne r s ’ s second issue.

co nfidential payment amount

— an incurable breach th at cease s [Perm it Pa rtners ’ s ] pa yment obligations under the MSA. ” Permit Partners also sought it s atto rney ’ s fees but did no t seek any actu al damage s
.

4 E vi dence in the record de monstrat es t h a t S auer w as unc er ta in abou t the s tatus of h er D OL cl aim and th at s he r e la ye d t he e xistence of the claim and h er uncertainty to Perm it Partners for the first tim e o n J uly 2 9, 2 018, prompting Permit Partne rs to wit h hold it s first settlement pay ment. H o wev e r , t he uncontrov er te d fact

— as supported by a le t ter from the DO L

— re main s tha t , desp ite Sauer ’ s unc e rtaint y, th e DOL had previously “ concluded ” her claim

.10

Suffi ciency of the evidence suppor ting at to r ney ’ s fees
In its t hir d issue, Perm it Partne rs conte n ds that the t ria l cou rt erre d in awar d ing
Saue r attorney ’ s fees be caus e (1) sh e failed to p r o ve t hat her fees we r e reaso nable or necessa ry , and (2) atto rn ey ’ s fees cannot be a warded against a n LLC

. W e unders tand the forme r a rgument
to be that S auer ’ s evi d enc e suppo rting attor ney ’ s f ees was i n suffic ie nt , and we ad dress i t first. To support h e r clai m for at torney ’ s fees, Saue r presented, and the t ri al co u rt
admitted without rele vant objectio n , 5 the a f fidavit of her attorn ey Anthony Iceno gle and his fee
i n voi ce
. Permit P a rtne rs c ont ends that the aff i dav it and inv oice do not contain all the ele m e n ts

t he s upre me c ou r t has ex p lained are nece ssary to s up port a ttorney

- f ee awards ba sed on the
lod es tar met ho d (i.e., hours of work pe rformed multi plied by the ho u r l y r ate)

. See El Appl e I,
Lt d. v. O livas , 370 S.W.3d 757, 76 0

– 61 ( Tex. 2012) (explaining lod e st ar method of proo f and

ne ed for documenta ry evid ence to pro ve that fees were reasonable and nece ssary ). S pecifically,
Permit P art ners contends that the fe e i nv o ice d oes not i nd i cate who pe r formed the servic es detailed

. “ Suffi ci ent evidence include s , a t a minimum, evidenc e of (1) p articular ser v ices perform ed, (2 ) who performed those services, (3) a ppr oxim at e ly when the services wer e performed, (4) the r eas ona bl e am ount of tim e r equi r ed to perform the servic es, and (5) the

reas on able hourly rate for eac h p erson perf orming s uch ser vi ces
. ” Rohrmo o s Venture v. UTSW DVA Healthcare, LLP , 578 S. W.3d 469, 498 (Te x. 2019) ; see El Apple , 370 S.W.3d at 76 3 ( “ [I]f
mul tip le at t orneys or oth e r le gal pro fession a ls are inv olved i n a case, the fee application shoul d
in d icate which attorne y perfor med a p articular task or cat egory of tasks. ” ) ; see als o Tex. Civ.

5 At trial, Pe rm it Part ners objected to ad m i ss i on of the fe e in voice onl y o n th e basis of S aue r ’ s fai lure to su bmi t the exhibit the week prior to trial pursu a n t to t he part i es ’ Rule 11 agreement. Permit Part ners does not contend on ap peal that the tr i a l c our t erred in ad mit ting the exhibit.11

Pra c. & Rem. C o de § 38.001 ( providin g f or re covery b y prevail ing pa rt y of “ reasonable

a ttor ney ’ s f

ees ” on br each

- of

- contrac t cl aim)

. P ermit Partners is corr e ct t hat the supr eme cou r t has i n cluded the iden tity of who perfor med the legal s ervic es among the mini m um
- req ui r e d evidence t o suppor t a n award of

at torney ’ s fee s u nd e r t he lodestar m e thod

. S ee Rohr mo o s Venture , 578 S.W.3d at 498

. However,

we conclude t h at t he evidence in th is record sufficient ly ide ntifies that it wa s Icenogle who perfo rmed the services for wh ic h Sauer sought to re co ver
. While the fee invoi ce its el f do es not specif i call y id ent ify whi ch attorney with Iceno gle ’ s fir m perform ed the detail e d l e gal services , and m e rely re cite s an hourly rate of $300 , Icen og le ’ s af fidavit specifies , relevantl y, that : he is

“ the at torney ” for Sauer , his h ourly rat e i s $ 30 0 , t he amount of a ttor ney ’ s f ee s (ca lculated at $300 per h our ) that Sauer had incurred so far is $11,706 , and the am ount of additional at torney ’ s fee s that he “ expe cted to incur . . . to prepa re for an d attend the trial ” in th is case is $9 00

. The tri al co u rt could reasona bl y h ave c on cluded that the af f idavit, in conjunct ion with the fee
invoi c e, s uffic iently identif i ed that it was I cenogle who p erform ed the legal service s at issue

. We overrul e Perm i t P artners ’ s c omplaint t hat S auer ’ s evid ence fail ed to me e t t he Rohrmoos
V ent ur e requ i rements

.

Per mi t Partners rais es tw o additional c omplaint s ab o ut S auer ’ s e vidence on
atto rney ’ s fe es: (1 ) it was ins uffici ent to support the portion of the awa rd for ap p ell ate atto rney ’ s fee s b ecause , in hi s af

fidav it, Ic en o gle did not s pec ifica lly ide n tify “ any backg ro und by whic h he
has the ability to testify as t o appellate attorne y ’ s fees , ” and (2 ) it ou tline d time billed for Sauer ’ s

“ un suc cessful ” summa ry
- j udgment m o tion and for def endin g a gainst Permit Par tners ’ s cla im s ,

w hich are not “ prop er ” bas e s for attor ney ’ s
- fee aw ards.12 We o verrule Permit Partner s ’ s c o mplaint tha t the e v idence was insufficient to
suppor t an awa rd of ap pellate att orney ’ s fees

. In his aff id a vit, Icenogle averred as to the fees he

e xpect ed Sau er to incur as “ rea sonab le and nec essa ry ” in c ase of an appe al by Pe r mit Partners.
H e also ave rred that he had bee n a lice nsed T e xas attor ney since 19 8 3, wi th the majorit y of his practice conce ntrated i n Travi s County, and t hat he was “ ful l y cogniza nt and a w are of the ty pe and n atu r e o f at to r ney s ’ fees reason ably charged f or legal services ” in Tra v i s County. P ermit
P a r tners did not object t o this aff id avit o r introduc e an y c on troverting evidenc e , and Pe r mit
Partners has not cit ed any relev a nt au thor ity re qu i rin g more specif icity ab ou t an a tt o rney ’ s
appe llate backg round whe n opining about ap pell ate a ttorney ’ s fe es
. Ac c ordingl y, the affidavit of
Sauer ’ s att orn ey constitu ted legal ly and factually suffici en t evid ence to support the trial court ’ s award o f a ppe ll a te attor ney ’ s fe es in th e ev ent of u ns uccessfu l appe als b y Permit Partners

. See
Cit y of Kel l er v. Wilson , 168 S

. W.3d 8 02 , 82 7 (T ex. 200 5) ( explaini ng t ha t evidence is l egally
sufficient if i t would e n able reasonable and f air

- minded peopl e to make fi ndi ng und er review);
C ain v
. B ain , 709 S. W.2d 175, 1 76 (Te x. 19 86) ( expl aining that when p arty cha l lenges fact u al
suff i ciency of adverse findi ng on issue on whi ch it did not have burd en of proof, i t must
de m onstrate that finding is so contrary to overwh elm ing w e igh t of evidence as t o b e cl earl y

w rong and ma nifest ly un

just ).
W e also overrule Perm it P a rtners ’ s con tention s about the “ improper ” b a ses for
Sau er ’ s a tto rne y ’ s fees because it did not pre ser ve e rr o r as to the complaint s. See Tex. R. Ap p. P. 3 3.1

. Ho w eve r , even if it s gen eral co ntent io n in its mo tion f or ne w trial t hat S auer “ failed

to s e gre g ate her fees betwee n recove rable and unreco verable clai ms ” co uld be c onstrued to

e ncompass these c omplain ts , Permit Par tners d oes no t cite any ap plica ble aut hor it y su pporting a

re versa l of th e awa rd on those b ases. Cf. Smith v. Texas Farmers Ins. , 82 S.W

. 3d 580, 588 (Tex.13

A p p.

— San Antonio 2002, pe t. denied ) ( “ [I] f the plaintiff ’ s breach of contract cl aim and t h e defendan t ’ s cou nter cla im encompass mat te rs tha t are i ndi stinguishable and aros e f rom t he same

tran s action s , and the sam e facts requir ed t o prosec u te the claim are re q uired t o defend against
the counter claim, then attorney ’ s fee s may be appropri ate

. ” )

. F urthermore , t he recor d c ontains
suffi cient uncon t rover t ed eviden ce

— in t he fo rm o f I cen og le ’ s aff idavi t

— to su pport the tri al

court ’ s co nclusio n th at the att orney ’ s fees Sauer i ncurred , includi ng t ime spen t purs uing
summary judgment and defending a gainst Pe r mit Pa rtners ’ s breach

- of

- contract cla ims , were

r e a sona b le an d necessary to p reva il on he r cl aims

. We overrule Per mit Par tner s ’ s con tention t h at
Sa u er “ failed t o prove the rea sonablene ss or n ecessity of her at torney ’ s fees. ”

Attorney ’ s fee s as se s sed again st the LLC
We now turn to Permit Part n ers ’ s con te nti on that the t rial co urt er red in a sses sing attorney ’ s fees against the LLC rat her th a n solely aga inst Ca n ci alosi

. S auer concede s that the

a ward o f attorney ’ s fees aga inst the LLC ca n not sta nd and that the aw ard sh oul d be reversed as
to t hat party

. S ee , e .g. , A lt a Mes a Holdi ngs, L .P. v. I ves , 488 S.W.3d 4 38, 4 55 (Tex. App.

— Houston [14t h D ist.] 2016, pet. de n ied ) ( h olding th at S ect ion 38.001 d o es no t authori ze recovery of attorney ’ s fe es agai ns t LLC )

. We , according ly, hold that th e trial cou r t err e d i n ass essing

a ttorn ey ’ s fe es a ga ins t the LLC and reverse the awa rd of attorney ’ s fee s ag ai n st it.

CONCL USION
We r e v erse the portion of the tria l cour t ’ s judgment a warding Sauer attorn ey ’ s fees ag a inst Permit Partners, LL C and render judgme nt acc ordingly . We affirm t he re m ain der of
th e judgme nt.14 _________________ _________________________ Thomas J. B ak e r , Just ice
B efo re Justices Good win , Baker, and Ke lly
A ffirmed in Part ; Rever s ed and Rendered in Par t
F iled: January 29, 2021