NUMBER 13-12-00398-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

PATSY JEAN JOHNSON A/K/A Appellant,

PATRICIA M. JOHNSON, 

v.

WAYNE VENTLING, Appellee.

On appeal from the 94th District Court

of Nueces County, Texas.

MEMORANDUM OPINION ON REHEARING

Before Justices Rodriguez, Garza and Perkes

Memorandum Opinion on Rehearing by Justice Garza

We issued our original memorandum opinion in this cause on March 7, 2013 and 

a substitute memorandum opinion on June 27, 2013. Both parties to the appeal have 

moved for rehearing.

1

 We grant the motions for rehearing in part and deny them in part,

 

1

Johnson filed a motion for rehearing on July 15, 2013. Ventling filed a “Response Regarding 
2

withdraw our previous substitute memorandum opinion and judgment and issue the 

following memorandum opinion and accompanying judgment in their place.

For the third time in nine years, appellant Patricia M. Johnson2seeks this Court’s 

assistance in her ongoing efforts to enforce contractual alimony obligations agreed to by 

her purported ex-husband, appellee Wayne Ventling. In this proceeding, Johnson 

contends that the trial court erred in its award of interest, attorney’s fees, and court 

costs. We affirm in part, reverse and render in part, and reverse and remand in part.

I. BACKGROUND

Johnson and Ventling cohabited from 1982 to 1995. In 1995, upon being 

advised by his attorney that a common-law marriage existed, Ventling filed for divorce. 

The parties agreed on the terms of a final decree, including a provision that Ventling pay 

Johnson alimony of $2,500 per month for 84 months. The agreed divorce decree was 

rendered on April 13, 1995.

Two years after the decree was entered, Ventling stopped making the monthly 

alimony payments. Johnson moved for enforcement, and Ventling responded by 

alleging that the contractual alimony obligation was void because the parties had, in 

fact, never been married. Ventling contended that he had been duped by Johnson into 

believing that a marriage had existed; he further claimed that the trial court retained 

plenary jurisdiction to vacate the divorce decree because, since there was never any 

marriage to dissolve, the April 13, 1995 judgment was interlocutory in nature. The trial 

court agreed with Ventling and vacated the divorce decree, but we held that the trial 

 

Rehearing” on September 5, 2013 in which he responded to Johnson’s motion and also requested that 

we affirm the trial court’s judgment; we construe this response as a motion for rehearing. Johnson filed a 

reply to Ventling’s “Response Regarding Rehearing” on September 16, 2013.

2

Also known as Patsy Jean Johnson.
3

court’s ruling was void. Johnson v. Ventling, 132 S.W.3d 173, 179 (Tex. App.—Corpus 

Christi 2004, no pet.) (Johnson I). We concluded that the divorce decree was “regular 

on its face” and not void, and that Ventling’s challenge to the enforceability of the 

decree therefore amounted to an impermissible collateral attack. Id. at 178–79.

On remand, the trial court rendered summary judgment denying Johnson’s 

motion for enforcement of the alimony obligations. The trial court, noting that Johnson 

had by then stipulated to the fact that the parties had never been married,3concluded 

that the alimony provisions in the 1995 decree were unenforceable “because alimony, 

as defined in 26 United States Code [section] 71, requires the existence of a marriage.” 

Again, we reversed. Johnson v. Ventling, No. 13-09-00563-CV, 2010 WL 4156459, at 

*6–7 (Tex. App.—Corpus Christi Oct. 21, 2010, no pet.) (mem. op. on reh’g) (Johnson 

II). We held that our conclusion in Johnson I—i.e., that the 1995 decree was not void—

was the law of the case and contradicted the judgment on appeal. Id. at *6. We noted 

that we could locate no persuasive authority indicating that contractual alimony is 

unenforceable for lack of consideration if the parties were never married. Id. at *7. We 

further held that the parties’ stipulation as to the lack of a marital estate was immaterial 

because “contractual alimony, if awarded, is not part of the ‘just and right’ division of the 

marital estate in a divorce proceeding.” Id. Additionally, we noted that Ventling’s 

affirmative defenses to enforcement of the alimony provision—including his claim that 

he was defrauded by Johnson into agreeing to a divorce—were unavailable to him 

because such defenses may only be raised by petition for bill of review. Id. n.9 (citing 

 

3

Johnson stipulated to the lack of a marriage in order to avoid federal prosecution for collecting, 

throughout her thirteen-year cohabitation with Ventling, federal military widow’s benefits from a prior 

marriage. See Johnson v. Ventling, 132 S.W.3d 173, 175 (Tex. App.—Corpus Christi 2004, no pet.) 

(Johnson I). At a 2011 hearing, Johnson’s counsel represented to the trial court that “the law was 

amended . . . to make it possible for widows to marry. . . .” We express no opinion on the matter.
4

TEX. R. CIV. P. 329b(f)). In conclusion, we directed the trial court to 

grant Johnson’s motion for enforcement and to award her: (1) $ 142,500 

in unpaid contractual alimony; (2) appropriate prejudgment interest, see 

Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 

528 (Tex. 1998) (permitting the award of prejudgment interest based on 

general principles of equity); (3) reasonable attorney’s fees; and (4) costs 

of court.

Id.

On remand, Johnson filed a motion asking the trial court to enforce our ruling in 

Johnson II.

4

 In the motion, Johnson contended that she was “entitled to judgment on 

December 19, 1997” and that, therefore, the pre- and postjudgment interest amounts 

should be calculated as of that date. Accordingly, she requested that the trial court 

award her the total sum of $769,746.80, representing: (1) $142,500 in damages; (2) 

$3,435.62 in prejudgment interest; (3) $366,438.48 in postjudgment interest, at 10% 

compounded annually, see TEX. FIN. CODE ANN. § 304.006 (West 2006); (4) 

$250,402.09 in attorney’s fees incurred since 1997, including fees for two trials and two 

appeals to this Court5; and (5) $6,970.61 in court costs. In response, Ventling argued 

that postjudgment interest was unavailable to Johnson because our opinion in Johnson 

II permitted only the recovery of prejudgment interest. Ventling further contended that 

the amount of reasonable and necessary attorney’s fees that should be awarded to 

Johnson is $15,000.

 

4

It is noteworthy that, since we last had the opportunity to consider this case, Ventling was found 

by clear and convincing evidence to have fraudulently transferred assets to his mother and sister in an 

attempt to prevent Johnson from executing on any Texas judgment rendered against him. The finding 

was made by a trial court in Iowa, where Ventling resides, and was contained in a judgment rendered in 

response to a petition filed by Johnson seeking to void the transfers. The Iowa judgment declaring the 

transfers void was filed with the Texas trial court by Johnson and appears in the record before us.

5

Johnson further requested $50,000 in attorney’s fees in the event she is successful in 

prosecuting a third appeal in this Court and $20,000 in the event she is successful in prosecuting an 

appeal in the Texas Supreme Court.
5

The trial court, after a hearing, rendered judgment on February 21, 2012 

awarding Johnson: (1) $142,500 in contractual alimony; (2) $3,435.62 in prejudgment

interest; (3) $70,275 in attorney’s fees; and (4) $20 in court costs. The judgment 

provided that “[p]ostjudgment interest at the rate of 6% will accrue on the total amount 

awarded in this Judgment, from the date of its entry.” An amended judgment was then 

rendered on March 21, 2012, setting the postjudgment interest rate at 5%. Johnson 

filed motions for reconsideration, to modify the judgment, and for findings of fact and 

conclusions of law, none of which the trial court ruled upon. See TEX. R. CIV. P. 329b(c) 

(providing that a motion for new trial or to correct or modify a judgment is overruled by 

operation of law after 75 days). This appeal followed.

II. DISCUSSION

By three issues on appeal, Johnson contends that the trial court’s judgment was 

erroneous in its award of (1) interest on the damages award, (2) attorney’s fees, and (3) 

court costs. We will address each element of the judgment in turn.

A. Judgment Interest

1. Standard of Review

We review a trial court’s award of prejudgment interest under an abuse of 

discretion standard. Morales v. Morales, 98 S.W.3d 343, 348 (Tex. App.—Corpus 

Christi 2003, pet. denied); see Sw. Grain Co. v. Pilgrim’s Pride S.A. de C.V., No. 13-07-

00557-CV, 2010 WL 2638483, at *6 (Tex. App.—Corpus Christi June 28, 2010, pet. 

denied) (mem. op.). To determine if there was an abuse of discretion, we must decide if 

the lower court acted arbitrarily, unreasonably, or without reference to any guiding rules 
6

or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 

(Tex. 1985); Sw. Grain Co., 2010 WL 2638483, at *6.

On the other hand, postjudgment interest is regulated by statute, and as such, its 

application is a question of law that we review de novo. Advanced Messaging Wireless, 

Inc. v. Campus Design, Inc., 190 S.W.3d 66, 71 (Tex. App.—Amarillo 2005, no pet.) 

(citing Columbia Med. Ctr. v. Bush ex rel. Bush, 122 S.W.3d 835, 865 (Tex. App.—Fort 

Worth 2003, pet. denied)).

2. Applicable Law

Prejudgment interest is “compensation allowed by law as additional damages for 

lost use of the money due as damages during the lapse of time between the accrual of 

the claim and the date of judgment.” Johnson & Higgins, 962 S.W.2d at 528 (citing 

Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552 (Tex. 1985)). An award of 

prejudgment interest may be based on either an enabling statute or general principles of 

equity. Id. (citing Cavnar, 696 S.W.2d at 552; Phillips Petroleum Co. v. Stahl Petroleum 

Co., 569 S.W.2d 480–85 (Tex. 1978)). There is no statute enabling the recovery of 

prejudgment interest on a contract claim such as Johnson’s. Cf. TEX. FIN. CODE ANN. § 

304.102 (West 2006) (“A judgment in a wrongful death, personal injury, or property 

damage case earns prejudgment interest.”). Accordingly, the common law forms the 

legal basis for the award of prejudgment interest in this case.

Under the common law, prejudgment interest begins to accrue on the earlier of 

(1) 180 days after the date a defendant receives written notice of a claim or (2) the date 

suit is filed. Johnson & Higgins, 962 S.W.2d at 531. Common law prejudgment interest 

is computed as simple interest and it accrues at the rate set by statute for postjudgment
7

interest. Id. at 532.6 The postjudgment interest rate, in cases where no interest rate is 

specified by contract, is “the prime rate as published by the Board of Governors of the 

Federal Reserve System on the date of computation,” except that the rate can be no 

lower than 5% nor higher than 15%. TEX. FIN. CODE ANN. § 304.003 (West 2006). 

Unlike prejudgment interest, postjudgment interest compounds annually. Id. § 304.006.

3. Analysis

It is undisputed by the parties that Ventling stopped making the contractual 

alimony payments in 1997, and—given our 2010 ruling that the contractual alimony 

obligations are enforceable—that Ventling owed Johnson $142,500 under a provision in 

the original divorce decree that provided for acceleration of alimony payments in the 

event of Ventling’s default. See Johnson II, 2010 WL 4156459, at *1–2. In Johnson II, 

we directed the trial court to award the $142,500 as well as “appropriate prejudgment

interest.” Id. at *7. Johnson contended that she is entitled to $3,435.62 in prejudgment

interest as well as $366,438.48 in postjudgment interest accrued from December 19, 

1997 (the date that the trial court initially heard Johnson’s original motion for 

enforcement) to March 21, 2012 (the date the judgment on appeal was rendered).

Ventling’s argument in response, made before the trial court and on appeal, is 

two-fold. First, he contends that the award of prejudgment interest on the unpaid 

 

6

In Johnson & Higgins, the Texas Supreme Court modified the common law prejudgment interest 

rules previously set forth in Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 554–56 (Tex. 1985), 

to conform with the statute governing prejudgment interest in wrongful death, personal injury, and 

property damage cases. See Johnson & Higgins of Tex. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 

(Tex. 1998); see also TEX. FIN. CODE ANN. ch. 304 (West 2006). The Johnson & Higgins Court held: “Our 

common law prejudgment interest holding applies to all cases in which judgment is rendered on or after 

December 11, 1997, and to all other cases currently in the judicial process in which the issue has been 

preserved.” Johnson & Higgins, 962 S.W.3d at 533. The rules set forth in that case apply here because, 

although the judgment requiring Ventling to pay contractual alimony was rendered in 1995, the judgment 

granting Johnson’s motion for enforcement could have come no earlier than December 19, 1997, the date 

the trial court first held a hearing on the motion for enforcement.
8

alimony was limited to $3,435.62 because that is the amount of prejudgment interest 

Johnson specifically requested in her motion to enforce this Court’s 2010 mandate. 

Second, Ventling argues that, to the extent Johnson requested postjudgment interest in 

her motion, the trial court was without authority to make that award because our 

directive at the conclusion of our Johnson II opinion did not specifically authorize it. See 

id.; see also Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (“When this court 

remands a case and limits a subsequent trial to a particular issue, the trial court is 

restricted to a determination of that particular issue.”). The trial court accepted 

Ventling’s argument in part and awarded only $3,435.62 in prejudgment interest on the 

$142,500 damages award.7

We first note that our 2010 opinion in no way restricted the trial court’s ability or 

responsibility to award postjudgment interest. In fact, even if we intended to prohibit the 

trial court from making such an award, we would not have the legal authority to do so. 

See TEX. FIN. CODE ANN. § 304.001 (West 2006) (“A money judgment of a court in this 

state must specify the postjudgment interest rate applicable to that judgment.”); Office of 

the Attorney Gen. of Tex. v. Lee, 92 S.W.3d 526, 528 (Tex. 2002) (“The [postjudgment

interest] statute is unambiguous and does not require, as a prerequisite for accruing 

interest, that judgments specifically include an award of postjudgment

interest. . . . Instead, under the statute, interest accrues automatically once a court 

renders its judgment.”); see also Hinojosa v. Hinojosa, No. 13-06-684-CV, 2007 WL 

1933586, at *4 (Tex. App.—Corpus Christi July 5, 2007, no pet.) (mem. op.) 

(“Postjudgment interest . . . is automatic and required by statute, even if not specifically 

 

7

The trial court did not, apparently, accept Ventling’s argument that it had no authority to award 

postjudgment interest. As noted, its final judgment stated: “Postjudgment interest at the rate of 5% will 

accrue on the total amount awarded in this Judgment, from the date of its entry.”
9

awarded or narrated in the judgment.”). Next, we note that it is abundantly clear from 

our opinion in Johnson II that we sustained Johnson’s issues in their entirety; we did not 

“implicitly deny” Johnson’s request for postjudgment interest, as Ventling claims. See 

Johnson II, 2010 WL 4156459, at *7 (“Johnson’s issues are sustained.”). Finally, in any 

event, the judgment on appeal did explicitly award postjudgment interest of 5%, and it 

specified that the interest would accrue beginning on the date of entry on the judgment.

With respect to prejudgment interest, we disagree with Ventling that the trial court 

could not have awarded any more than $3,435.62, the amount of prejudgment interest 

Johnson requested in her motion. Johnson’s motion specifically stated that she 

believed she was entitled to judgment as of December 19, 1997, and that the pre- and 

postjudgment interest amounts she requested therein were calculated as of that date. If 

the postjudgment interest began accruing, as Ventling asserted, on the date the 

judgment on appeal was rendered—March 21, 2012—then prejudgment interest must 

have accrued until that date. Alternatively, if Johnson is correct that postjudgment

interest should have started accruing on December 19, 1997, then the trial court’s 

award of prejudgment interest was correct but its date for the commencement of 

postjudgment interest accrual was erroneous. Either way, the trial court abused its 

discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (“A trial court has 

no ‘discretion’ in determining what the law is or applying the law to the facts.”).

The pertinent case law supports Johnson’s position and establishes that, when 

an appellate court reverses a judgment, the accrual of postjudgment interest (and, 

consequently, the termination of prejudgment interest) relates back to the date of the 

original erroneous trial court judgment. See, e.g., Thornal v. Cargill, Inc., 587 S.W.2d 
10

384, 385 (Tex. 1979) (“[W]hen the trial court’s judgment is erroneous, the judgment of 

the court of civil appeals must take its place and plaintiff is entitled to interest from the 

date of the erroneous judgment.”); Am. Paper Stock Co. v. Howard, 528 S.W.2d 576, 

577 (Tex. 1975) (same); Long v. Castle Tex. Prod. L.P., 330 S.W.3d 749, 753–54 (Tex. 

App.—Tyler 2010, pet. abated) (“[A] party that ultimately prevails is entitled to 

postjudgment interest from the date the original judgment was rendered, irrespective of 

whether the original judgment was erroneous, because that is the date upon which the 

trial court should have rendered a correct judgment.”); State Dep’t of Highways & Pub. 

Transp. v. Timpson, 795 S.W.2d 24, 27 (Tex. App.—Tyler 1990, writ denied) (“Interest 

on the revised judgment should run from the date of the original or erroneous 

judgment.”); D. C. Hall Transp., Inc. v. Hard, 355 S.W.2d 257, 260 (Tex. Civ. App.—Fort 

Worth 1962, writ ref’d n.r.e.) (““Since the [1958] judgment [n.o.v.] was erroneous, and 

the 1961 judgment took its place, plaintiff was entitled to interest from the date of the 

erroneous judgment.”); see also Phillips v. Bramlett, 407 S.W.3d 229, 239 (Tex. 2013).

8

 

8

In Phillips v. Bramlett, the Texas Supreme Court addressed the issue of when postjudgment 

interest begins accruing. 407 S.W.3d 229, 232–39 (Tex. 2013). In that case, the trial court ruled that 

damages awarded against a doctor were not capped by statute. Id. at 232. The court of appeals agreed 

but the supreme court reversed, holding that damages were capped, and remanded to the trial court. Id.

at 232–33. The trial court rendered a new judgment on remand (the “remand judgment”) that capped 

damages. Id. at 233. On appeal, the doctor argued, among other things, that postjudgment interest 

should not have started to accrue until the date of the remand judgment. Id. The Texas Supreme Court 

concluded that

when an appellate court remands a case to the trial court for entry of judgment consistent 

with the appellate court’s opinion, and the trial court is not required to admit new or 

additional evidence to enter that judgment, as is the case here, the date the trial court 

rendered the original judgment is the “date the judgment is rendered,” and postjudgment 

interest begins to accrue and is calculated as of that date.

Id. at 239 (emphasis added).

Citing Phillips, Ventling urges in his motion for rehearing that postjudgment interest cannot relate 

back to the trial court’s original 1998 judgment because, unlike in Phillips, the trial court heard additional 

evidence on remand in this case. We agree with Ventling in part. Evidence regarding attorney’s fees and 

court costs incurred by Johnson after January 9, 1998 was not before the trial court at the time it rendered 
11

The original erroneous trial court judgment in this case was the trial court’s initial 

denial, on January 9, 1998, of Johnson’s original motion for enforcement. The trial court 

therefore erred by stating in its March 21, 2012 amended final judgment that “[p]ostjudgment interest at the rate of 5% will accrue on the total amount awarded in this 

Judgment, from the date of its entry.” We reverse that portion of the judgment. Instead, 

the judgment should provide that postjudgment interest on the damages award began to 

accrue as of January 9, 1998.

9

 Johnson’s first issue is sustained.

B. Attorney’s Fees

1. Standard of Review and Applicable Law

Section 38.001 of the civil practice and remedies code provides that a “person 

may recover reasonable attorney’s fees from an individual or corporation, in addition to 

the amount of a valid claim and costs, if the claim is for . . . an oral or written contract.” 

TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (West 2008). Neither party disputes that 

this statute authorized the award of attorney’s fees in this case. The awarding of fees 

under section 38.001 is mandatory if there is proof of the reasonableness of the fees. 

Mercier v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 770, 775 (Tex. App.—Corpus Christi 

2007, no pet.) (citing Great Global Assurance Co. v. Keltex Props., 904 S.W.2d 771, 

776 (Tex. App.—Corpus Christi 1995, no pet.) (“A court has discretion to fix the amount 

 

its original judgment, on January 9, 1998, denying Johnson’s enforcement motion. Accordingly, with 

respect to those fees and costs, it would be false to state that the trial court “could have entered a correct 

judgment [at the time of the original erroneous judgment] but did not.” Id. at 241. Postjudgment interest 

on those fees and costs should therefore begin to accrue on February 21, 2012, the date the trial court 

first rendered judgment awarding Johnson such fees and costs. See id. at 239.

However, the trial court could have, and should have, rendered judgment awarding Johnson 

$142,500 in damages on January 9, 1998, based on the evidence adduced as of that date. Therefore, 

postjudgment interest on that amount begins accruing on January 9, 1998, the date of the original 

erroneous judgment. See, e.g., Thornal v. Cargill, Inc., 587 S.W.2d 384, 385 (Tex. 1979).

9

This accrual date does not apply to the award of attorney’s fees or court costs. See supra n.8; 

Phillips, 407 S.W.3d at 239.
12

of attorney’s fees.”); Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) (noting that 

statutes providing that a party “may recover” attorney’s fees are not discretionary)).

The determination of what is a reasonable fee is a question for the trier of fact. 

Id. Factors to be considered include:

(1) the time and labor required, the novelty and difficulty of the questions 

involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the 

particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client; 

(7) the experience, reputation, and ability of the lawyer or lawyers 

performing the services; and

(8) whether the fee is fixed or contingent on results obtained or 

uncertainty of collection before the legal services have been 

rendered.

TEX. DISCIPLINARY R. PROF’L CONDUCT 1.04(b), reprinted in TEX. GOV’T CODE ANN., tit. 2, 

subtit. G, app. A (West 2004); see Arthur Andersen & Co. v. Perry Equip. Corp., 945 

S.W.2d 812, 818 (Tex. 1997); Mercier, 214 S.W.3d at 775–76. The court is not required 

to receive evidence on each of these factors. Mercier, 214 S.W.3d at 776 (citing 

Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 897–98 

(Tex. App.—Dallas 2003, no pet)). The court can also look at the entire record, the 

evidence presented on reasonableness, the amount in controversy, the common 

knowledge of the participants as lawyers and judges, and the relative success of the 

parties. Id.
13

We review the award of attorney’s fees for an abuse of discretion. Id. at 775 

(citing Bocquet, 972 S.W.2d at 21; Ragsdale v. Progressive Voters League, 801 S.W.2d 

880, 881 (Tex. 1990) (per curiam)). As noted, a trial court abuses its discretion when it 

acts arbitrarily and unreasonably, or without reference to guiding rules and principles. 

Downer, 701 S.W.2d at 241–42.

2. Evidence

At a hearing on December 9, 2011, Johnson’s lead trial and appellate attorney, 

Bernard Shub, testified as to work that he did on this case over the last fifteen years. 

Shub testified that Johnson is married to his wife’s father; that is, Johnson is Shub’s 

stepmother-in-law. He did not have a written fee agreement with Johnson. Shub 

explained: “I have not expected [Johnson] to fund the litigation, other than to pay the 

appellate lawyers.[10] And I’ve funded the litigation and performed the services in 

anticipation of the day when I would recover and get an award of attorney’s fees.”

Prior to this case, most of Shub’s experience had been in “insurance-related 

litigation” and this was one of the first cases that he took on as a solo practitioner in 

1997. Shub stated that “[t]his has been a complex interstate collections case from the 

beginning.” He noted that he provided trial court services in the case from 1997 to 

2001, from 2007 to 2009, and from 2011 until the date of the hearing. Shub further 

noted that he prosecuted two successful appeals from trial court orders,11 successfully 

 

10 The “appellate lawyers” referred to by Shub include Thomas Crofts, who testified that he is 

board-certified in civil appellate litigation and has been practicing appellate law since the mid-1970s. He 

was retained by Shub to assist in prosecuting Johnson’s appeals. Crofts stated that his fees, which were 

incorporated into the amount that was testified to by Shub, were reasonable and customary. He could not 

recall whether he had entered into a written fee agreement with either Johnson or Shub.

11 Ventling argues that Johnson did not actually prevail in Johnson I because we dismissed that 

appeal for want of jurisdiction. See Johnson I, 132 S.W.3d at 179. That is incorrect. Our opinion in that 

appeal granted Johnson precisely the relief she was seeking—a declaration that the trial court’s 2001 
14

defended against Ventling’s motion to dismiss the second appeal, and successfully 

moved this Court to rehear the second appeal. See Johnson II, 2010 WL 4156459, at 

*1 & *4 n.5. According to Shub, the total amount of fees incurred by Johnson in this 

case was $265,967.09, representing: (1) $68,466 for trial court proceedings that took 

place between 1997 and 200112; (2) $46,786.76 for the first appeal, from 2001 to 2004; 

(3) $49,377.50 for trial court proceedings after the first appeal and before the second 

appeal, from 2007 to 2009; (4) $83,171.83 for the second appeal, from 2009 to 2011; 

and (5) $18,165 for trial court proceedings following Johnson II, up until the date of the 

hearing.

Shub alleged that “one reason that the case was so demanding and required so 

much time is Dr. Ventling’s decisions about how to litigate what began as a $142,000 

case created the need for quite a bit of legal effort.” He alleged that “[t]his case has had 

a bottomless time commitment” in part because Ventling repeatedly raised contractual 

defenses to enforcement of the alimony obligations that this Court has held were not 

available to him. See Johnson II, 2010 WL 4156459, at *7 (“[C]ontractual defenses, 

such as failure of consideration, are now unavailable to Ventling because the instant 

proceeding is a collateral attack on the 1995 decree.”); Johnson I, 132 S.W.3d at 738–

 

judgment, which purported to invalidate the 1995 divorce decree, was void. See id. We dismissed the 

appeal for want of jurisdiction because “[o]ur jurisdiction extends no further than that of the court from 

which the appeal is taken.” Id. (citing Warner-Lambert Co. v. Mills, 117 S.W.3d 488, 490 (Tex. App.—

Beaumont 2003, no pet.), rev’d on other grounds, 157 S.W.3d 424 (Tex. 2005)). But our dismissal of the 

appeal for want of jurisdiction does not rob our opinion—including its declaration that the 2001 judgment 

was void—of its binding power. It may seem counterintuitive, but under our rules, an appeal can be 

“successful” even if it is dismissed by the appellate court.

12 Shub testified that, in 1997, his client was awarded $2,250 in fees for work done in this case 

between September and December of that year, but that those fees were not included in his calculation. 

On cross-examination, Shub recanted this testimony and stated: “It looks like there’s billing that’s 

included, sir, yes, sir, so we can take the [$]2,250 out and give you a credit for that.”
15

39 (“We hold that Ventling’s challenge to the enforceability of the decree in this 

proceeding amounted to an impermissible collateral attack.”).

Shub stated that, at the outset of the case, he had nine years of experience as 

an attorney and charged either $150 or $175 per hour for his services. He became 

board-certified in civil trial law and personal injury trial law in 1997 and subsequently 

raised his hourly rate to $350; accordingly to Shub, he applied that rate to all services 

rendered following the first appeal. Shub testified that, given the complexity of the 

litigation, these rates were not unreasonable or unusual.

This was not the first time in this case that Shub testified about his fees. Shub 

conceded that, in a 2001 hearing, he testified that his fees up until that point were only 

$42,000. However, Shub testified in 2001 that he “had probably under[]billed by about 

20 percent.” He later revised his figure for fees corresponding to that time period to 

$68,466. Shub also testified in 2001 that $7,500 would be a reasonable fee for an 

appeal to this Court if Johnson was the appellee and prevailed on appeal. In 2008, 

Shub did not testify regarding appellate fees but did submit a proposed judgment 

conditionally awarding Johnson $7,500 for successfully prosecuting an appeal in this 

Court. Shub stated: “I have since learned that the cost of appellate work is much 

higher than that.” At the 2011 hearing, he stated that $50,000 for an appeal to this 

Court and $25,000 for an appeal to the Texas Supreme Court would be reasonable.

On cross-examination, Shub acknowledged that he treated Johnson differently 

than most clients because she is a member of his family, and that he did not have a 

written fee agreement with her. Instead, according to Shub, “I would keep track of my 

time, and if I could recover attorney’s fees at the courthouse, they would be mine.”
16

Ventling’s lead trial counsel, William Dudley, testified that the amount Shub 

requested was neither reasonable nor necessary. He stated that “if you are providing 

someone legal counsel for something that’s unreasonable, you should not be entitled to 

get a reasonable attorney fee for it. . . . And it is my opinion that to request a fee of 

$260,000 to collect a contract for $140,000 is not reasonable.” Dudley agreed that the 

case involved “novel” legal issues, but asserted that “[j]ust because something is novel 

doesn’t make it difficult, and just because something is difficult doesn’t make it legally 

complex.” He noted that, in any event, “these two parties created” the novel situation. 

He stated that he believed a total award of $10,000 for trial work “would not be offensive 

to me as an attorney who practices law.” On cross-examination, Shub produced 

evidence that Dudley had himself received over $42,000 in fees from Ventling over the 

same time period.

Dudley claimed that it was inappropriate and unreasonable for Shub to have 

increased his hourly rate during the course of the proceedings without obtaining 

Johnson’s approval.13 Dudley further stated that $350 per hour was an unreasonable 

rate for Shub to charge for a family law case in Nueces County. He noted that, though 

Shub is board-certified in two areas, he is not board-certified in family law.

Ventling’s lead appellate counsel, Audrey Vicknair, also testified that $350 was 

an unreasonable hourly rate in Nueces County. She averred that $83,000 for the 

prosecution of Johnson II is unreasonable and that $50,000 for a third appeal to this 

Court would be “frankly, outrageous.” She testified that appropriate and reasonable 

fees would be: $25,000 for the prosecution of the Johnson II appeal; $10,000 for a third 

 

13 Shub did not state whether or not he obtained Johnson’s approval for the increased rate; 

however, because Shub testified that he did not “expect[ Johnson] to fund the litigation,” we find it very 

likely that he did not even seek Johnson’s approval.
17

appeal to this Court; $5,000 for filing a petition for review with the Texas Supreme 

Court; $10,000 for full briefing on a petition for review; and $7,500 for arguing the merits 

of a petition for review in Austin.

Ventling argues on appeal that $15,000 was a reasonable amount for Johnson’s 

attorney’s fees incurred in the trial court proceedings. He further contends that Johnson 

was not entitled to any appellate fees because this Court’s opinion and mandate in 

Johnson II did not specifically mention “appellate attorney’s fees.” As noted, the trial 

court awarded a total of $70,275 in fees and did not award conditional appellate 

attorney’s fees.

3. Analysis

We find that the trial court’s award of previously-incurred attorney’s fees was 

supported by the evidence and, therefore, not an abuse of discretion. Although the 

award of $70,275 was far less than the amount requested by Johnson, it was also more 

than would have been justified had the trial court fully accepted the testimony of Dudley 

and Vicknair. As noted, Dudley testified that $10,000 would be a reasonable fee for all 

trial court services rendered since the inception of the case, and that recovery of fees 

corresponding to the first appeal should be limited to $7,500 because that is the amount 

Johnson requested at the time the services were rendered. Vicknair testified that 

$25,000 would be reasonable for the prosecution of Johnson II. Thus, the evidence 

supported an award of previously-incurred attorney’s fees as low as $42,500.

In any event, when reviewing matters reserved for the trial court’s discretion, we 

may not substitute our own judgment for that of the trial court. Mercier, 214 S.W.3d at 

775 (citing Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41–42 (Tex. 1989)). The 
18

trial court was vested with discretion to believe or disbelieve the testimony of counsel as 

it saw fit, and—though we may not have reached the same conclusion—we may not 

disturb the ruling.

However, there was no testimony supporting the trial court’s failure to award 

conditional prospective attorney’s fees in the event of a third appeal in this case—an 

event which has now come to fruition. Ventling argues that “the law does not permit the 

recovery of retroactive appellate fees to the trial court loser.” He contends that 

“[b]ecause Johnson was never the trial court winner, and never the Appellee with a 

judgment in her favor for contingent appellate attorney[’]s fees, this Court could not and 

cannot initiate an award of appellate fees to her.” We disagree that “Johnson was never 

the trial court winner.” In light of our 2004 and 2010 opinions, Johnson was, in fact, the 

ultimate “winner” in this case, and the judgment on appeal reflects that. Moreover, at 

the 2011 hearing, attorneys for both parties agreed that an award of conditional 

prospective attorney’s fees was reasonable and warranted here.

We conclude that the trial court abused its discretion by failing to award 

conditional attorney’s fees for this, the third appeal taken from the trial court in this 

protracted case. Because there was conflicting evidence adduced below as to the 

precise amount of reasonable and necessary fees, we will remand the cause to the trial 

court for a determination of the proper amount. Johnson’s second issue is sustained in 

part.

C. Court Costs

Texas Rule of Civil Procedure 131 provides that “[t]he successful party to a suit 

shall recover of his adversary all costs incurred therein, except where otherwise 
19

provided.” TEX. R. CIV. P. 131. We review the trial court’s award of court costs for 

abuse of discretion. Moore v. Trevino, 94 S.W.3d 723, 729 (Tex. App.—San Antonio 

2002, pet. denied).

At the December 9, 2011 hearing, Shub referred to a “summary” of taxable court 

costs that he prepared, reflecting $5,500 paid on Johnson’s behalf in the course of 

prosecuting this case since 1997. Although Shub apparently tendered the summary to 

the trial court, Dudley raised multiple evidentiary objections which the trial court 

sustained. Johnson notes on appeal that the statute regarding the recovery of costs, 

Texas Civil Practice and Remedies Code section 31.007(a), “clearly does not require a 

formal presentation of evidence of a party’s costs during trial.” Nolte v. Flournoy, 348 

S.W.3d 262, 271 (Tex. App.—Texarkana 2011, pet. denied); see TEX. CIV. PRAC. & REM.

CODE ANN. § 31.007(a) (West 2008). Instead, “[a]ll that seems to be required is that the 

successful party present . . . an itemized list of costs and fees incurred during the 

lawsuit.” Nolte, 348 S.W.3d at 271. But here, no such itemized list appears in the 

record. Accordingly, we have no choice but to affirm the trial court’s admittedly dubious 

award of $20 in court costs. See Watkins v. Jones, 192 S.W.3d 672, 674 (Tex. App.—

Corpus Christi 2006, orig. proceeding) (“The burden lay upon [appellant] to supply this 

Court with a complete record demonstrating that the trial court abused its discretion.”) 

(citing Univ. of Tex. at Austin v. Hinton, 822 S.W.2d 197, 202 (Tex. App.—Austin 1991, 

no writ)).

Johnson’s third issue is overruled.
20

III. CONCLUSION

We reverse that portion of the trial court’s judgment failing to award Johnson 

conditional prospective appellate attorney’s fees, and we remand the cause to the trial 

court with instructions to determine the reasonable and necessary amount of such fees

and to render judgment that Johnson shall recover such fees.

14 Postjudgment interest 

at the rate of 5%,15 compounded annually, shall accrue on this amount as of the date 

that this appeal was perfected.16 See Sw. Bell Tel. Co. v. Vollmer, 805 S.W.2d 825, 834 

(Tex. App.—Corpus Christi 1991, writ denied) (noting that a judgment awarding 

postjudgment interest on appellate attorney’s fees must provide that the interest begins 

to accrue “when an appeal is perfected or application is filed, whichever the case may 

be”) (citing Republic Nat’l Life Ins. Co. v. Beard, 400 S.W.2d 853, 859–60 (Tex. Civ. 

App.—San Antonio 1966, writ ref’d n.r.e.)), disapproved on other grounds by Hous. 

Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668, 675 (Tex. 1999).

We additionally reverse that portion of the judgment stating that “[p]ost-judgment 

interest at the rate of 5% will accrue on the total amount awarded in this Judgment, from 

the date of its entry.” We remand the cause to the trial court with instructions to render 

judgment in lieu thereof as follows:

 

14 Although we are reversing the trial court’s judgment only in part, there should be no doubt that 

Johnson is the “successful” party in this appeal and is therefore entitled to any appellate fees conditioned 

upon success in this Court.

15 The applicable judgment interest rate as of June 18, 2012. See Office of Consumer Credit 

Commissioner, November 2013 Judgment Rate Summary, http://www.occc.state.tx.us/pages/int_rates/

November%2013%20Judgment%20Rate%20Summary.pdf (last visited October 31, 2013).

16 The record reflects that Johnson perfected the instant appeal on June 18, 2012.
21

 With respect to the $70,275 past attorney’s fees award and the $20 court costs 

award, postjudgment interest at the rate of 5%,17 compounded annually, shall 

accrue as of February 21, 2012, the date upon which the judgment awarding 

attorney’s fees was first rendered. See Phillips, 407 S.W.3d at 243.

 With respect to the $142,500 damages award, postjudgment interest at the rate 

of 10%,

18 compounded annually, shall accrue as of January 9, 1998. See id.

The remainder of the trial court’s judgment is affirmed.

________________________

DORI CONTRERAS GARZA,

Justice

Delivered and filed the

19th day of December, 2013.

 

17 The applicable judgment interest rate as of February 21, 2012. See id.

18 The applicable judgment interest rate as of January 9, 1998. See id.; see also TEX. FIN. CODE 

ANN. § 304.003(b) (West 2006) (providing that the applicable postjudgment interest rate set by the Office 

of Consumer Credit Commissioner is “applied to a money judgment rendered during the succeeding 

calendar month”); Phillips, 407 S.W.3d at 243 (noting that postjudgment interest “must be calculated as 

of” the date of the original erroneous judgment); supra n.8.