PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR ATTORNEY FEES,

PREJUDGMENT INTEREST, POST-JUDGMENT INTEREST AND COSTS PAGE 1 OF 12

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

EL CAMPO VENTURES, LLC, §

 §

Plaintiff, §

 §

vs. § Civil Action No. 1:20-cv-00560-RP

 §

STRATTON SECURITIES, INC., §

STRATTON OILFIELD SYSTEMS §

TEXAS, LLC, DANIEL STRATTON, §

and SHANNON STRATTON, §

 §

 §

Defendants. §

PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR ATTORNEY

FEES, PREJUDGMENT INTEREST, POST-JUDGMENT INTEREST AND 

COSTS

Plaintiff El Campo Ventures, LLC (“El Campo”) hereby files this Reply in Support

of its Motion for Attorney Fees, Prejudgment Interest, Post-judgment Interest and Costs.

I. ATTORNEY FEES

A. Defendant’s Analysis of the Rohrmoos Venture Decision is Wrong

Defendant’s assertion that the “Texas Supreme Court expressly held in Rohrmoos

that a contingency fee agreement may not be used to shift attorney’s fees to the 

defendant” is false. See Sayers Constr. v. Accordant Commc'ns, No. A-19-CV-787-LY, at *8 

(W.D. Tex. Nov. 21, 2019) ("under Texas law, fees that would be charged by attorneys in 

Case 1:20-cv-00560-RP Document 117 Filed 10/17/21 Page 1 of 12
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR ATTORNEY FEES,

PREJUDGMENT INTEREST, POST-JUDGMENT INTEREST AND COSTS PAGE 2 OF 12

a contingency fee case are recoverable." Dkt. No. 1-2 at p. 3, citing Rohrmoos Venture 

v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019)).

Furthermore, the Rohrmoos decision confirms that the fee claimant in a 

contingency fee case may choose its method for recovering attorney fees and “the 

lodestar method applies when the fee claimant puts on evidence of reasonable fees by 

relating the hours worked multiplied by hourly rates for a total fee, citing Long v. 

Griffin, 442 S.W.3d 253, at 255 (Tex. 2014)” Rohrmoos Venture v. UTSW DVA Healthcare, 

LLP, 578 S.W.3d 469, 495-96 (Tex. 2019). In this case, El Campo elects to recover 

attorney fees under the contingent fee method of proof rather than the loadstar method

and has not submitted loadstar evidence. 

Under Texas law, “strict reliance on the lodestar method of calculation is not 

required if the plaintiff can otherwise demonstrate that the fees sought are reasonable.”

Thomas v. Hughes, SA-16-CV-00951-DAE, at *7 (W.D. Tex. June 23, 2020). Here, the 

parties agree that El Campo is able to demonstrate its requested fees are reasonable 

under the “usual and customary” presumption afforded by Texas Civil Practice and 

Remedies Code Chapter 38.

B. El Campo Is Not Required to Present Lodestar Evidence

The Texas Supreme Court in Rohrmoos relies heavily on its earlier decision in 

Long and specifically cites Long seven (7) times in its analysis. “It should have been 

clear from our opinions in El Apple, Montano, and Long that we intended the lodestar 

Case 1:20-cv-00560-RP Document 117 Filed 10/17/21 Page 2 of 12
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR ATTORNEY FEES,

PREJUDGMENT INTEREST, POST-JUDGMENT INTEREST AND COSTS PAGE 3 OF 12

analysis to apply to any situation in which an objective calculation of reasonable hours 

worked times a reasonable rate can be employed. We reaffirm today . . . .” Rohrmoos 

Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 497-98 (Tex. 2019). 

Therefore, because Long remains valid authority, the following cases cited by 

El Campo that rely on Long remain valid and are controlling in this case.

The United States Fifth Circuit Court of Appeals recognized: (1) "supporting

evidence is not required for the contingency fee method of proof (as it is for the

lodestar method) ...." Long v. Griffin, 442 S.W.3d 253, 256 (Tex. 2014), quoted in

Mid-Continent Cas. Co. v. Kipp Flores Architects, L.L.C., 602 Fed. Appx. 985, 23 (5th Cir.

2015), and (2) "Texas law does not require the lodestar evidence for contingency fee

arrangements." Mid-Continent, 602 Fed. Appx. 985, 23.

“In a Texas contract case, lodestar evidence is not required for contingency fee 

awards. ” CAN Capital Asset Servicing v. Whitaker Trucking, LLC, CIVIL ACTION No. 

9:19-cv-00071, at *6 (E.D. Tex. May 4, 2020).

El Campo elects to recover attorney fees under the contingent fee measure 

approved by the Texas Supreme Court and the Fifth Circuit and does not attach 

loadstar evidence to this reply. El Campo recognizes that W.D. Tex. Local Rule 54 

envisions the submission of a loadstar calculation. If this Court believes that it needs 

such evidence to decide the issue, then upon request El Campo is prepared to submit 

loadstar estimates.

Case 1:20-cv-00560-RP Document 117 Filed 10/17/21 Page 3 of 12
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR ATTORNEY FEES,

PREJUDGMENT INTEREST, POST-JUDGMENT INTEREST AND COSTS PAGE 4 OF 12

C. El Campo’s Contingent Fee Agreement With Its Attorneys Is For A

Percentage That is Usual And Customary and is Presumed Reasonable

El Campo has presented proof that its 30% contingent fee agreement is a 

usual and customary fee agreement for cases of this type. The Fifth Circuit’s decision in 

Mathis v. Exxon Corp. is again directly on point. In Mathis, the prevailing plaintiff’s 

request for attorney fees was based on a contingency fee agreement between plaintiff

and his attorneys. The district court awarded attorney fees in the amount of 40% of

the damages found by the jury, which was the percentage in the attorney fee

agreement. 302 F.3d at 453. The Fifth Circuit affirmed this award. 302 F.3d at 462. The

Fifth Circuit explained that the determination of the amount of attorney fees is guided 

by two presumptions:

First, there is a rebuttable presumption of reasonableness for fees that

are "usual" or "customary." Tex. Civ. Prac. & Rem. Code § 38.003 (Vernon

2002). Second, where the fees are tried to the court, as they were in this case,

the statute authorizes the judge to take judicial notice of the "usual and

customary fees" and the contents of the case file. Id. at § 38.004. Texas courts

have upheld fee awards using these presumptions where the attorneys had

a contingent fee arrangement. Laredo Indep. Sch. Dist. v. Trevino, 25 S.W.3d

263 (Tex. App.--San Antonio 2000, review denied) (40% contingency fee);

European Crossroads' Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 58-59 (Tex.

App.--Dallas 1995, writ denied) (upholding jury award of 35% based only on 

attorney's own testimony).

Plaintiffs' attorneys supported their fees by submitting an affidavit

drafted by lead counsel and an affidavit of an attorneys' fees expert. Exxon

countered by challenging the reasonableness of the total award. Under

Texas law, the two affidavits, combined with the presumption of

reasonableness and the court's ability to use judicial notice to guide the

Case 1:20-cv-00560-RP Document 117 Filed 10/17/21 Page 4 of 12
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR ATTORNEY FEES,

PREJUDGMENT INTEREST, POST-JUDGMENT INTEREST AND COSTS PAGE 5 OF 12

reasonableness finding is enough for us to conclude that the district court

did not abuse its discretion in awarding fees as contemplated by plaintiffs'

contingency fee contract.

302 F.3d at 462 (emphasis added).

In 2015, the Fifth Circuit reaffirmed that reasonable attorney fees under § 38.001

may be awarded based on a contingent fee percentage and upheld an award based on a 

36% contingent fee percentage. Mid-Continent Cas. Co. v. Kipp Flores Architects, L.L.C., 602 

F. App'x 985, 22 (5th Cir. 2015).

This Court’s Final Judgment Order requires the question of El Campo’s 

attorney fees to be submitted to the Court. (Dkt. No. 111). In Mathis v. Exxon Corp.,

the Fifth Circuit noted that the district court was authorized to take judicial notice of the

"usual and customary fees" and the contents of the case file. 302 F.3d at 462.

As the Texas Supreme Court in Rohrmoos Venture pointed out, Texas Civil Practice 

and Remedies Code Chapter 38 includes noteworthy provisions not typically found in 

other statutory fee enactments:

We note that section 38.004 of the Civil Practice and Remedies Code

authorizes a court, in certain proceedings involving fee-shifting under section 

38.001, to take judicial notice of usual and customary attorney's fees. Tex. Civ. 

Prac. & Rem. Code § 38.004 ("The court may take judicial notice of the usual and 

customary attorney's fees and of the contents of the case file without receiving 

further evidence in: (1) a proceeding before the court; or (2) a jury case in which 

the amount of attorney's fees is submitted to the court by agreement."). In such 

instances, there is a rebuttable presumption that the usual and customary fees 

are reasonable. Id. § 38.003 ("It is presumed that the usual and customary 

Case 1:20-cv-00560-RP Document 117 Filed 10/17/21 Page 5 of 12
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR ATTORNEY FEES,

PREJUDGMENT INTEREST, POST-JUDGMENT INTEREST AND COSTS PAGE 6 OF 12

attorney's fees for a claim of the type described in Section 38.001 are 

reasonable.").

Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 490 n.9 (Tex. 2019).

“Where the fee claim is predicated on Chapter 38, the trial court may take 

judicial notice of the usual and customary fees and of the contents of the case file, 

presume that the usual and customary charges for the work performed are 

reasonable, and set the fees based on such judicial notice without receiving further 

evidence. TEX. CIV. PRAC. & REM. CODE ANN. §§ 38.003–.004. The statute permitting 

this procedure is to be liberally construed to promote its underlying purposes. Id. § 

38.005.” Scott Pelley P.C. v. Wynne, 578 S.W.3d 694, 705 (Tex. App. 2019).

“The Court notes that a one third contingency fee agreement is customary in 

both Austin and San Antonio, Texas.” Barger v. Sutton, Civil Action No: SA-01-CA0294-XR, at *4 (W.D. Tex. Apr. 13, 2004). Here, Judge Rodriguez took judicial notice of 

the customary 33 1/3% contingent fee percentage for a breach of contract case under 

Tex. Civ. Prac. & Rem. Code § 38.004. “In Texas, the Court is to presume that the usual

and customary attorney's fees for a case such as this are reasonable. Tex. Civ. Prac. 

& Rem. Code § 38.003.”, Id. at *2.

El Campo requests that the Court take judicial notice from its own experience 

that its 30% contingent fee is a usual and customary contingency fee percentage, and 

that such a fee is reasonable in this case. 

Case 1:20-cv-00560-RP Document 117 Filed 10/17/21 Page 6 of 12
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR ATTORNEY FEES,

PREJUDGMENT INTEREST, POST-JUDGMENT INTEREST AND COSTS PAGE 7 OF 12

It is the opinion of El Campo’s attorneys that the 30% contingent fee is well within

the customary fee for similar work in business cases in Texas. Contingent fee

percentages in Texas for business cases range from 30% to 40% depending on which

party pays the expenses, when the case is resolved and the dollar value of the case. El 

Campo understands that the Court is knowledgeable in this area and requests that

the Court take judicial notice from its own experience that a 30% contingent fee is the

usual and customary contingency fee percentage, and that such a fee is reasonable in

this case. Furthermore, El Campo asks the Court to take judicial notice of reported

decisions, discussed above, concerning attorney fee awards under Texas law that

were based on similar contingent fee percentages. These include:

• Mid-Continent Cas. Co. v. Kipp Flores Architects, L.L.C., 602 F. App'x 985, 22 

(5th Cir. 2015) (upholding the 36% contingent fee award)

• Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002) (upholding the 40% 

contingent fee award)

• Laredo Indep. Sch. Dist. v. Trevino, 25 S.W.3d 263 (Tex. App.--San Antonio 2000, 

review denied) (upholding the 40% contingent fee award)

• European Crossroads' Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 58-59 (Tex. 

App.--Dallas 1995, writ denied) (upholding the 35% contingent fee award)

Case 1:20-cv-00560-RP Document 117 Filed 10/17/21 Page 7 of 12
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR ATTORNEY FEES,

PREJUDGMENT INTEREST, POST-JUDGMENT INTEREST AND COSTS PAGE 8 OF 12

• El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 766 (Tex. 2012) (concurring opinion: 

Justice Hecht used a hypothetical 50% contingent fee as a check on lodestar fee)

D. Should The Court Find That Segregation Of El Campo’s Attorneys’ Efforts 

Is Required, El Campo Believes No More Than 10% Of Those Efforts 

Involved Non-Contract Claims

The Texas Supreme Court said, in Tony Gullo Motors I, L.P. v. Chapa, that a

lawyer does not need to keep a separate accounting of time spent on tasks for

which fees may be recovered and tasks for which they may not. An attorney familiar

with the actual work done can estimate percentages for segregation purposes. The

court also suggested that one could look at the pleadings to estimate what portion

pertained to causes of action for which attorney fees can be recovered and what

portion pertained to causes of action for which attorney fees cannot be recovered. 212 

S.W.3d at 314.

The Signor Defendants were only included in this case because Defendant 

Stratton Securities, Inc. failed to file a Memorandum of Option Agreement in the Dimmit 

County real estate records. (See Exhibit A). Once the Signor Defendants responded to 

El Campo’s request for production, it was clear they were innocent in this matter and

were immediately dismissed. El Campo believes segregation involving the Signor 

Defendants is not required as the request for production would have been served on 

them as a non-party.

Case 1:20-cv-00560-RP Document 117 Filed 10/17/21 Page 8 of 12
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR ATTORNEY FEES,

PREJUDGMENT INTEREST, POST-JUDGMENT INTEREST AND COSTS PAGE 9 OF 12

In this case, El Campo’s 30% contingency contract results in a fee of $1,228,590.00. 

El Campo believes a 5% reduction in the fee award is warranted to compensate for the 

fraud, conspiracy and breach of fiduciary duty tort claims that were dismissed on 

summary judgment and for which Texas law does not permit the recovery of attorney 

fees. Furthermore, El Campo believes an additional 5% reduction in the fee award is 

warranted to compensate for services performed in connection with its conversion claim 

where attorney’s fees are not recoverable under Texas law. Thus, El Campo believes

$1,105,731 (27% contingency fee) would be an appropriate fee award in this matter.

II. PREJUDGMENT INTEREST

In this case, the parties agree that El Campo should be awarded 659 days of 

prejudgment interest at the rate of 5%. Defendant relies on Section 304.1045 of the 

Texas Finance Code for its assertion that “prejudgment interest may not be assessed or 

recovered on an award of future damages.” However, Section 304.1045 only applies to 

cases involving wrongful death, personal injury, or property damage. See Section 

304.101. Defendant does not cite a single case applying Section 304.1045 to a contract 

case. The jury awarded damages of $4,095,300 for breach of contract and El Campo 

should recover prejudgment interest based on this amount, for a total of $369,699.00.

Furthermore, neither El Campo nor Defendant knows for certain how the jury 

calculated the amount of damages it awarded. The jury heard an audio recording of El 

Case 1:20-cv-00560-RP Document 117 Filed 10/17/21 Page 9 of 12
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR ATTORNEY FEES,

PREJUDGMENT INTEREST, POST-JUDGMENT INTEREST AND COSTS PAGE 10 OF 12

Campo requesting $4 million from Stratton Securities, Inc. for its interest in the contract 

at issue on May 22, 2019 (Plaintiff’s Trial Exhibit 41). The jury also was presented 

evidence of an additional 15% in proceeds to Defendant on over $2.6 million in 

expenditures by the U.S. Government prior to November 18, 2020 (Plaintiff’s Trial 

Exhibit 11). Thus, even if Section 304.1045 applied to future contract damages, it’s 

impossible to say for certain that the jury’s award included any future damages.

III. POST-JUDGMENT INTEREST

Defendant does not object to El Campo’s request for post-judgment interest. 

Therefore, El Campo requests post-judgment interest at the maximum amount allowed 

by law until the judgment is paid in full by Stratton Securities, Inc.

IV. REVISED AMOUNT OF COSTS

Upon review of Defendant’s objections regarding El Campo’s costs, El Campo 

discovered the attached statement (Exhibit B) was not submitted with its Bill of Costs. 

This oversight was inadvertent, as El Campo submitted proof of payment of the four 

invoices totaling $6,908.47 for costs related to the transcripts of Daniel Stratton and 

Shannon Stratton and included this amount in its Bill of Costs. (Dkt. 112 at 5). 

Defendant agrees that $7,564.02 should be awarded to El Campo and does not 

dispute liability for any costs related to deposition transcripts. Therefore, El Campo 

requests the addition of $6,908.47 in transcript costs to the undisputed amount of 

$7,564.02, resulting in a revised award of taxable costs in the amount of $14,472.49. 

Case 1:20-cv-00560-RP Document 117 Filed 10/17/21 Page 10 of 12
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR ATTORNEY FEES,

PREJUDGMENT INTEREST, POST-JUDGMENT INTEREST AND COSTS PAGE 11 OF 12

V. CONCLUSION

For the forgoing reasons, El Campo respectfully requests the Court award

reasonable attorney fees in the amount of $1,105,731, prejudgment interest in the 

amount of $369,699.00, post-judgment interest accruing at the maximum rate allowed 

by law, costs in the amount of $14,472.49 and provide any further relief that the 

Court deems just and proper.

Respectfully submitted,

 NEVÁREZ LAW GROUP

780 E. Rio Grande St.

Eagle Pass, Texas 78852

830.776.7003

830.776.7004 (FAX)

BY:

 ALFONSO NEVÁREZ C.

 STATE BAR NO. 24005376

 anc@nevarezlawgroup.com

 

LAW OFFICE OF BEN GATES, P.C.

7015 SNIDER PLAZA, SUITE 202

DALLAS, TEXAS 75205

TEL: (214) 756-6053

FAX: (214) 989-7305

BY:

BENJAMIN P. GATES

TEXAS STATE BAR NO. 24062740

Case 1:20-cv-00560-RP Document 117 Filed 10/17/21 Page 11 of 12
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR ATTORNEY FEES,

PREJUDGMENT INTEREST, POST-JUDGMENT INTEREST AND COSTS PAGE 12 OF 12

bpg@bengatespc.com

ATTORNEYS FOR PLAINTIFF 

EL CAMPO VENTURES, LLC

CERTIFICATE OF SERVICE

I certify that I served this Plaintiff’s Reply in Support of its Motion for Attorney 

Fees, Prejudgment Interest, Post-judgment Interest and Costs on all counsel of record 

via CM/ECF filing in accordance with the Federal Rules of Civil Procedure on October 

17, 2021.

______________________________

Benjamin P. Gates

Case 1:20-cv-00560-RP Document 117 Filed 10/17/21 Page 12 of 12