*District Judge of the Southern District of Texas, sitting by

designation.

 

**Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-20606

_____________________

CONFERENCE CONSULTANTS, INCORPORATED,

Plaintiff-Appellee,

versus

CSX HOTELS, INCORPORATED, doing business

as The Greenbrier,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas, Houston

(H-95-CV-5842)

_________________________________________________________________

December 29, 1998

Before JOLLY and JONES, Circuit Judges, and LAKE,* District Judge.

PER CURIAM:**

CSX Hotels, Inc. d/b/a The Greenbrier, appeals a judgment in

favor of Conference Consultants, Inc. (“CCI”), on CCI’s claim for

breach of an oral commissions agreement. For essentially the

reasons stated by the district court, we affirm.

Applying the full performance doctrine as an exception to the

Texas statute of frauds, the district court held that CCI had fully

performed the oral commissions agreement when it presented the
2

prospect of booking the 1995 Tyson meeting to The Greenbrier and

therefore CCI had earned its ten percent commission. The district

court awarded CCI $38,601.00 in compensatory damages plus

prejudgment interest, $24,670.16 in attorney’s fees, and $2,647.28

in costs.

The Greenbrier’s initial argument on appeal is that the

district court erred in its application of the full performance

doctrine. Relying on McCauley v. Drum Service Co., Inc., 772

S.W.2d 135 (Tex. App.–Houston 1989, writ denied), The Greenbrier

argues that CCI had no performance obligation under the contract

because CCI presented the 1995 Tyson meeting before the commissions

agreement was made. The Greenbrier further argues that it did not

partially perform under the agreement because it never paid CCI the

ten percent commission. Therefore, The Greenbrier concludes that

the statue of frauds bars enforcement of the oral contract. The

Greenbrier’s final argument is that the district court erred in

awarding attorney’s fees to CCI in excess of its contingency fee

arrangement. 

Whether a contract is within the statute of frauds is a

question of law that we review de novo. Pruitt v. Levi Strauss &

Co., 932 F.2d 458, 463 (5th Cir. 1991), abrogated on other grounds

by, Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181

(5th Cir. 1995). However, we review an award of attorney’s fees

for abuse of discretion. Forbush v. J.C. Penny Co., 98 F.3d 817,

822 (5th Cir. 1996). 
3

After a careful study of the record and the briefs, and with

the benefit of the parties’ oral argument, we are left with the

definite and firm conclusion that the district court did not err in

applying the full performance doctrine to enforce the oral

commissions agreement. 

As a general premise, Texas recognizes the full performance

doctrine as an exception to the statute of frauds. Application of

the full performance doctrine requires: (1) full performance by one

party; (2) part performance by the other party; with (3) a knowing

acceptance of the benefits. Enochs v. Brown, 872 S.W.2d 312, 319

(Tex. App.–-Austin 1994, no writ). We agree with the district

court that CCI fully performed its obligations under the oral

commissions agreement when it presented the 1995 Tyson meeting to

The Greenbrier. Although the district court made no explicit

finding that The Greenbrier knowingly accepted the benefits of

CCI’s performance, and then partially performed by booking the

Tyson meeting and earning room revenues on the event, such a

finding is implicit and sufficiently supported by overwhelming

evidence in the record. Therefore, we find that the remaining two

requirements of the full performance doctrine have been

conclusively established. Century Marine, Inc. v. U.S., 153 F.3d

225, 231 (5th Cir. 1998) (reviewing court may assume factual

finding supported by the evidence). 

Accordingly, we reject The Greenbrier’s part performance

argument. Considering the nature of the parties’ agreement, actual
4

payment of the commission would have been full performance.

Further, in the light of the terms of the oral agreement,

buttressed by the parties’ course of dealings–-three previous

commissions agreements with terms identical to the instant

contract–-we find The Greenbrier’s McCauley argument wholly

unpersuasive. As the record makes clear, CCI’s duty to provide the

Tyson lead to The Greenbrier was a term of the parties’ agreement

and therefore CCI’s performance did not predate the contract. 

Second, because the district court calculated the attorney’s

fees using the loadstar method and then adjusted the award applying

a reasonableness criteria under Texas law quite similar to the

federal standards recently articulated in Forbush, 98 F.3d at

823-24, we conclude that under either state or federal standards,

the award does not constitute an abuse of discretion. We add that

the award is not unreasonable simply because it exceeds CCI’s

contingency fee agreement. A contingency agreement does not impose

an automatic ceiling on an award of attorney’s fees, nor is a

district court bound by its terms. Blanchard v. Bergeron, 489 U.S.

87, 93 (1989); Forbush, 98 F.3d at 822. The ultimate issue is the

reasonableness of the award and a preexisting fee arrangement only

assists in this determination. See Id.; Arthur Anderson v. Perry

Equipment Co., 945 S.W.2d 812, 819 (Tex. 1997) (contingency fee

arrangement cannot alone support and award of attorney’s fees). 

In sum, we find it unnecessary to write further on this

appeal. Through its extensive factual findings and cogent legal
5

analysis, the district court properly applied the full performance

doctrine and reasonably calculated the award of attorney’s fees.

The judgment of the district court is therefore, in all respects,

A F F I R M E D.