## In t he Court of Appeals Seco nd Appe llate District of Texas at For t Worth

___________________________ No. 02

- 19

- 00394

- CV

___________________________ 

### V ICTOR 

### M IGNOGNA 

### , Appellant

V


### . F UNIMATION 

### P RODUCTIONS 

### , LLC, J AMIE 

### M ARCHI 

### , M ONICA 

### R IAL 

### , AND 

### R ONALD 

### T O YE 

### , Appell ees A ND


### M ON I C A 

### R IAL AND 

### R ONAL D 

### T OYE 

### , Appell ants

V


### . V ICTOR 

### M IGNOGNA 

### , Appellee2 On Appeal fro m the 141st District Court Tarrant County, Texas Tri al Court No. 141

- 307474

- 19

Concurrin g and D issenting Mem orandum Opi nion by Justice Womack3 CONCURRING 1 AND DISSENTING MEMORANDUM OPINI ON
I. I NTRODUCTION The trial court award ed Monica Rial and Ronald T oye $100,000 in attorne y ’ s fees

. Both Appellant V ictor Mignogna and Cross

- Appellant s R ial and Toy e challenge
th is awa rd

. While M ignogna dispute s the award of any fees because “ the tria l court improperly dismissed [hi s TCPA ] claims , ” 2 Rial and Toye dis put e the amount of the
attorney ’ s

- fee s award , co mplai n ing that it was lower than the amount they requested. The majority agrees with Rial and Toye , reversin g and remanding for a
redetermination of fees. Becau se I do not agree that the trial court abused its
discreti on , I respec tfully dis sent. II
. D ISCUSSION In their so le cross

- appeal issue, Ria l an d Toye complain that the t rial court ’ s award of $100,00 0 in attorney ’ s f ees is improper because they requ est ed and pro vided evidence of $282, 953.80 in fee s. Mi gnog na responds that the trial court acted within its discretion in reducing the attorney ’ s

- fees award in light of the follo wing: Rial and Toy e ’ s “ h eavil y reda cted bi lling stateme nts ” ; “ deficiencies in Rial and Toye ’ s att orney

1 I concur with the m a jority o pi nion ’ s di spos iti on of the T exas Citi zens Participation Act (TCP A) claim.

2 I ag r ee wit h the m ajor ity o pinion that , due to its disposition of the TCPA claim, it was proper for the trial court to award some am ount of attorney ’ s fees to the successfu l movants

. See Tex . Ci v. Prac. & Rem . Code An n. § 27.009(a)(1); Sullivan v. Abraham , 48 8 S. W. 3d 294, 299 (Tex. 2016).4 billing statements, in cludin g Ri al and Toy e ’ s attempt to recover attorney ’ s fees for block billing, billing for unnecessary tasks such as discussions with a NY bankrupt cy attorney, several hours of discussion s regarding alleged death t hreats to Rial and Toye
from unknown indivi duals, unr easonably large time spen t on discr e [te] ta sks such as
bil ling over fifty (50) ho urs to prepare for a single deposition, duplicative and

e xcessive attorney wo rk , and for billin g time spen t on opposition res earch not rela ted to resolving a case un der th e TC PA ” ; the fact that Mi gnogna ’ s attorney “ informed the

tr ial court Rial and Toye ’ s attorney ’ s fees rates were excessive ” ; deficiencies in th eir
attorney ’ s fee expert ; and the tes timony of Jamie Marchi ’ s expert witness that Marchi ’ s reasonable and n e cessa ry f ees for “ defending the exact same claims and ach ieving the exact same results as Rial and Toye ” were $48,137.50

. For these reasons and others, I
ag ree with Mignog na that the trial court acted within its discretion in reducing the
attorney ’ s

- fee s award to Rial and Toye.
A. S TANDARD OF R EVIE W When a trial court di smisses a suit under the TCPA, it must award “ reasonable
attorney ’ s fees ” to the successf ul movant . Tex. Civ . Prac. & Rem. Code Ann. § 27.009(a)(1); Sullivan , 488 S.W. 3d at 2 9 9 . A reaso nable at torney ’ s fee “ is one that is

not e xc ess ive or ex treme, but rather mode rate or fair. ” Sulli van , 488 S.W.3d at 29 9 (citing Garcia v. Go mez , 319 S.W.3 d 638, 642 (Tex. 2010)).
We review the trial court ’ s dec ision to award att orne y ’ s fees under this sec ti o n for an abuse of discretion. Navidea Biopharm., Inc. v. Cap

. Royalt y Partners II, L.P. ,5 No. 14

- 18

- 00740

- CV, 2020 WL 5087826, at *6 (Tex. App.

— Houston [1 4 th D i s t.] Aug. 28, 2020, pet. denied) (mem. op.) ( citing Sullivan v. Te x

. Ethic s Comm ’ n , 551 S .W.3 d 8 4 8, 857 (Tex. App.

— Austin 2018, pet. d enied)). “ A t rial court abuses i ts dis cretion if its decision ‘ is arbitrary, unreasonable, and without reference to guid in g principles. ’ ” Sullivan , 551 S.W. 3d at 857 (quoting Goode v. Sh ou kfeh , 943 S.W.2d 441,
446 ( T e x. 1997 )) ; see In re A.L.M.

- F. , 593 S.W.3d 271 , 282 (Tex. 2019) . A tr ial cour t does not abuse its discretion when its ruling is based on conflicting evidence a nd some evidence of substantive and probativ e character supports it s decision. Unifu nd
CCR P a r

t ners v. Villa , 299 S.W.3d 92, 97 (T ex. 2 009). And a trial court does not abuse its discretion merely because the appellate court would have ruled dif ferently i n the
same circumstances. E.I. du Pont de N emours & Co. v. Robin so n , 923 S.W .2d 549, 55 8 (T e x . 19 95); see Low v. Henry , 221 S.W.3d 609, 620 (Tex. 200 7).
B
. A NALYSIS

The hearing on attorney ’ s fees span ned 192 pages of testimony from four
witness e s as well as fifteen exhi bits. After examining the evidence, t he majority
op inion stat e s that “ [ b]y aw a r ding essentially the same amount [ t o Rial and Toye as it
di d to Marchi ,] [ 3 ] the trial court appar en tly failed to factor in all of the testi mony

3 While th e majorit y opinion say s that th e amount s awarded by the trial court were “ essentially th e same amount, ” this is not what the jud gment reflect s. Ra ther , the judgment s tates t hat different amount s of at torney ’ s fees

— t rial a nd appel la te

— and different amount s of litigation expenses were awarded to Fun imati on Productions, LLC ; Rial and Toye ; a nd Marchi

. See Exhibit A.6 addressing expertise and experience, as well as the distinction between a large firm ’ s billing rate and a smal l firm ’ s billing ra te a n d the fact that Marchi ’ s counsel had leverage d the ‘ heavy lifting ’ by Rial an d Toy e ’ s legal t eam to prevail with sign ificantly
few er hours at a significantly lower cost. ” While no ting that “ the trial court had ample evidence upon w h i c h to exercise its discretion, ” the maj or ity opinion then
conclude s th at “ the trial court ’ s co mments [ 4 ] make apparent w ha t the record other wise

4 When re ferring t o the “ t rial c ourt ’ s comm ents, ” t he m a jority opinion is app arently citin g its earlier s tatem ents that “ th e trial court observed that Funimation ’ s bill wa s $100,000 less than Rial and T oye ’ s ” ; tha t t he trial c ourt no ted t hat there was a

“ $234, 000 difference [ between the reque sted atto rney ’ s fees for Marchi as compared to R ial a nd To ye ] ” ; an d th at the tri a l cou rt stated, “ [I]f you brought me a repair bill on a car or so met hing, and one i s 4 8,000 and one is 282 ,000, y ou ca n ’ t say those are both reasonable, or that th e 282,000 was reasonable. It ’ s the same causes of actio n. ” The se comments b y t h e trial cour t sh ould not figure in to the abuse

- of

discretion anal ysi s as the r e were no findings of fact or conclu sions of law filed in this
case ; t herefo re, we mus t i nfer all findings necessary to support the trial court ’ s ju d gment. Lemon s v. EMW Mf g. C o. , 747 S.W.2d 372 , 373 (Tex. 19 88) ; s ee BM C Software Bel g. , N.V. v. Marchand , 83 S. W .3d 789, 7 95 (Tex. 2002) ; see a lso Sprute v. Levey , No. 04

- 14

- 003 58

- CV, 2015 WL 4638298, at *7 (Tex. App.

— San An tonio July 15, 2015, no pet.) (me m. op.) (ho lding that wh er e the trial co urt did n ot ex pr essly state its reason for a reduc ed fee, “ we must inf e r t h at the trial co urt found ‘ s ome o f the claimed fees to be unrea sonable, unwar ranted, or some other cir cum stanc e which [made] an awa rd of th e uncontrovert ed claim wron g ’ ” (quoting Rag sdal e v. Progre ss ive Voters League , 801 S.W.2d 880, 882 (Tex. 1990))

. In addition , a court o f appeals is not entitled to look to an y of the trial cour t ’ s comm ents at the concl usion of a bench trial as a substitut e for findings of fact and co nclusions of l aw . In re W.E.R. , 669 S.W. 2d 716 , 716 (Tex. 198 4) ; s ee Elgohary v. Lak es on Eldridge N . C mty. A s s ’

n ., Inc

. , No. 01

- 14

- 00216

- CV, 2016 WL 4374918 , at *1 2

– 13 (Tex. App.

— Houston [1 st Dist. ] A ug. 16, 2016, no pet. ) (mem. op.) (conc luding that d es pi te the “ tria l co ur t ’ s off

- th e
- cuf f statement” that it was “ going t o arbit rarily red uce the award for attorney ’ s fees, ” the

“ trial court hear d testimony, exhibits, and t he cross

- examin ation con testing an award of attorney ’ s fees ” and did no t act arbitra ri ly in reducing att or ney ’ s fees ) ; se e also Dow Che m. Co. v. Fr ancis , 46 S.W.3d 237, 24 0

– 4 1 (Tex. 20 01) ( “ A trial court ha s the7 shows , ” that “ the trial court abused its discretion when it awarded to R i al an d Toye collectively just over on e
- third of thei r r equ e s ted amount of attorney ’ s fees. ” I believe
that this analysis goes beyond t he scope of our review , interferes with the trial court ’ s discretion , a nd substitutes our opinion for that of the factfinder

. The det ermination of what is a r e a s onab le amount of attorney ’ s fees cann ot be made by application o f some mechanical formula. USX Corp. v. Union Pac

. R es . Co. , 753 S.W.2d 845 , 858 (Tex. App.

— Fort Worth 1988 , no writ). While a mov ant must prove that its requeste d attorne y ’ s fees are bot h reaso nable and neces sary, whether a
fe e i s reasonable and whether it is necessar y are both “ questions of fact to be
de termined by the fact finder, ” and ea ch “ act[s] as [a] limit[ ] on the a mount of f ees that a prevailing party can shift to the non

- p revai l i ng pa rty. ” Rohrm o os Venture v.
UTSW D VA Healthcare, LL P

, 578 S.W.3d 469, 489 (Tex. 2019). And here, where t he
fees w ere presented u nder the Rohrm o os lodestar metho d, the determin ation of what
constitutes a reasonable attorney ’ s fee involves two st eps , a n d the trial court ma y adjust the base lo d estar up or down if relevant factors indicate an adjustment is
necessary to r ea ch a re asonable f ee in the case. Id. at 494. Th is second step permits
the factfinder t o determine whether e vidence o f other consider a t ions over comes the

authority to express itself in exercisi ng th is broad discretion [o ve r the co nduct of a trial]. ” )

. Theref ore, the t rial court ’ s co mm ents d id not lim it the scope of w hat we may infer from th e jud gm ent. See In re Q.M

. , No. 02

- 1 9

- 00367

- CV, 2020 WL 82 7595 , at *4 (Tex. App.

— Fort Worth Fe b. 20, 2020 , n o pet.) (mem. op.).8 presump t io n of reasonable ness. Id. at 501. Here, t h ose consideration s could ha ve inclu ded the following:

• Rial and To ye ’ s attorney ’ s fees were $ 282,953.80 while Marchi ’ s were $48,137.50 and Fun imation ’ s were $168,941 ;

• R ial and Toye ’ s at t or ney s ’ rates were $65 0 and $515 per hour as compared to Marc hi ’ s attorney ’ s rate of $250 per hour plus a $100 per hour “ success bonus ” by getting the claims dismissed within six months
and Fu nimation ’ s attorney s ’ rate s of $ 500 and $4 10 per h our ;

• t wo a tt o rneys for Rial and Toye testified by affi davit s that were admitted
into evidence that , in t heir experience, “ a rate be tween $275 .00 per hour and $515.00 per hour is a re asonable hourly rate for the attorney s working o n t his matter in Tarrant C ounty ” ;

• Ri a l and Toye ’ s attorney spen t si xty hours prepar ing for a t en

- hour deposition ;

• Rial and To ye had three attorneys appear at one deposition ; and

• f ew documents were f iled prior to the grant ing of the motion to dismiss

. Further, w hile t he attorney for Ma r ch i

— who had the l owest at torney ’ s f ees

— testified
that this was the first TCPA motion he had ever drafted , and the attorney for Ri al and Toye

— who had the hig hest attorney ’ s fe es

— testified that he had extensive experienc e with the TCPA , all mova nts achieved th e same result

— dismissal of the9 lawsuit at the same hearing and in the same judgment

. All of these considerations

co uld have factored into the trial cour t ’ s deci sio n to reduce the amount of attorney ’ s fees a warded to R ial and Toye.
Rial and Toye ’ s attor n ey even agree d that the trial court had wide discretion i n setting their attorney ’ s fees . At the hearing on attorney ’ s fees, he stated, “ [T] he C ourt doesn ’ t have dis cretion to award zero , bu t the C ou rt doe s have the discretion to set
the amou nt. ” T he ir a tt o rney admitted that wh ile his rate wa s $650 an h our, his “ rate at $300 would also be reason able, or any rate below [his] 650 rate. ” Although Ri al and Toye had “ more timekeepers, ” “ higher rate s, ” and “ spen t more time on t he file, ” their attorney agr eed t ha t they “ got the same resu lt ” as the other movants. Ultima tely, he simply “ ask[ed] the Court to just fill in th e blank on what the Cou rt finds as a reasonable fee. ” Now, on appeal, Rial and Toye urge oth erwise.
However , t he trial court was not require d t o award the amou nt requested by Rial and Toy e . Rather, a s we have stated before, “ a trial cou rt i s not, of course , a

mere r u bb er stamp or bean

- count er; even when evidence of attorney ’ s fees is

un controve r ted, a trial court is not obligated to award the re q u ested amount. ” Mogg ed
v. Lindamoo d , No. 02

- 18

- 00126

- CV, 202 0 WL 7074390 , at *1 8 (Tex. App.

— For t Worth Dec. 3, 2 020, pet. den ied) (mem. op.) ; see M cGi bney v. Rauhauser , 549 S.W.3d 816, 821 (Tex. App.

— Fo rt Worth 2018, pet. den ied) ( “ In the proper exerc i se of its discretion, th e trial judge is obliged to do more than simp ly a ct as a rubb er

- sta mp,

a cce p ting c arte b lanc he the amo unt appearing on the bill

. ” )

. A nd, a s noted in Mogged ,10 reduced attorney ’ s

- fee s awards under the TCPA can be and ha ve been upheld as a proper e xercise of the tr ial court ’ s discretion if conflictin g ev idence of their
reasonablen ess exist s . Mogge d , 2020 WL 707 4390, at *18 (citing Ruder v. Jordan , No. 05

- 16

- 007 42

- C V, 2018 WL 672091, at *3 (Tex. App.

— Dallas Feb. 2, 2018, no pet.) (mem. o p . ) ) ; see Dav is v. Huey , 571 S.W.2d 85 9, 862 (Tex. 1 978 ) (stating that “ [a]n abuse of discretion does not exist where the tri al court bases its decisions on conflicting evidence ” )

. On appe al, w e must defer to the tr ial court ’ s role as fact finder and its r ol e in
evalu at ing the complexity and necessity of the legal s er v

ices in light of the $ 282,953.80

r e quested. See Pro

- Care Med. Ct r. & Injury Med. Grp. v. Qua lity Carriers, Inc. , No. 14

- 18

- 01062

- CV, 2020 WL 1617116, at *3 (Tex. App.

— Houston [14 th Dist.] Ap r . 2 , 2020,

n o pet. ) (mem. op .). We must recognize that the t rial court did not ne ed to awa rd th e full amount of fees requ este d e ven if th e evidence was undisputed. 5 Smith v. Patrick

5 Th e Texas Supreme C ourt has made it clear that eve n uncontrovert ed evidence of a tto r ney ’ s fees do es not necessarily require a f inding of reasonableness as a matter of law:
In order for the court to award an amount of attorneys ’ fe es a s a matte r of law, the ev idence f rom an i n terested witness must not be c ontradicted b y any other witn ess or attendant ci rcumstances and the same mus t be clear , direct and posi tive, and free from contradictio n , inaccuracies and ci rcumstances tending t o [cau s e] suspicion thereon. T he court , as a t r ier of fact, may award attorne ys ’ fees as a m atter of law i n s u ch circumstan ce s, especially when the oppos ing party has the means and opport un i ty of disp rovi ng the t est imony or evidence a nd fails to do
so . . . . In [some situations,] the e vidence may be u n contradicted, bu t the trial judge11 W.Y . Tam Tr

. , 296 S.W. 3d 54 5, 547

– 48 (Tex. 2009)

. W hi le the testimony o f R ial an d
To ye ’ s attorn ey was some evidence of a rea sonabl e fee, it was not conclusive

. See
Garcia , 31 9 S.W.3d at 642

. Ra th er, the determination of reasonableness “ r ests within

t he court ’ s sou nd discr eti on. ” Sullivan , 48 8 S.W.3d at 29 9

. A s part of it s d i scretion,
the trial court could “ cons ider the entire record and c ommon knowledge of the participants as lawye rs and judg e s in making its det ermination. ” Mogged , 202 0 WL 7074390, at * 18 (citing I n re A.M

. , No. 02

- 18

- 00412

- CV, 2020 WL 39 87578 , at *4 (Tex

. Ap p.

— Fort Worth June 4, 2020, no pet.) (mem. op. ) ) ; see McMahon v.
Z immerman , 433 S.W.3d 680, 693 (Tex. App.

— Houston [1 st Di s t. ] 2014, no pet.) ( “ Trial courts are consi dered experts o n the reason ab len ess o f attorney ’ s fees. ” ).
After adhe ring to these pr in ci ples and considering the entire record , I would con clude that the award of $100 ,000 .00 in attorney ’ s fees to Rial and Toye was well within the
discretion of the trial court.
I II
. C ONCLUSION T he majori ty concludes th at the trial court ’ s “ attorney ’ s

- f ee a mount awarded i s not supported by factual ly sufficient evid ence ” and remand s the issue to the trial court
for a redete rmina tio n . B ut the tr ial court

— an expert on the reasonabl eness of

a ttorney ’ s fees

— consid ered the ent ire record, h eard the disputed ev i d en c e , exercis ed could f in d some of the cla i me d fees to b e un reasonable, unwarranted, or som e other cir cumstance w hich woul d m ake an award of the un controverted claim w ron g. Ragsda le , 801 S.W. 2d at 882 (emphasis added ).12 its di scre tion , and reduced the amount of attorn ey ’ s fees awarded to Rial and Toye.
Because th e determination of attorney ’ s f e es is wi t h in the t rial court ’ s soun d di screti on and there are insufficient gro und s t o secon d

- guess that discret i o n in this case, I would
af firm the trial court ’ s award of attorney ’ s f ees.

/s/ Dana Womack Dana Womack Justice
Delivered: August 18, 202213 EXHIBIT A14