IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

WYNDHAM PROPERTIES II, LTD., §

§

 §

Plaintiff, §

 §

v. § Civil Action No. 4:22-cv-00166-BP

 § 

BUCA TEXAS RESTAURANTS, LP, §

 §

§ 

Defendant. §

 

MEMORANDUM OPINION AND ORDER 

Before the Court are Defendant’s Motion for Attorneys’ Fees, Brief in Support, and 

Appendix in Support (ECF Nos. 79, 80, 81); Plaintiff’s Response and Brief in Support, and 

Appendix in Support (ECF Nos. 83, 84); and Defendant’s Reply and Appendix in Support (ECF 

Nos. 87, 88). After considering the pleadings and applicable legal authorities, the undersigned 

GRANTS Defendant’s Motion in part. ECF No. 79.

I. BACKGROUND

This case is a dispute over a commercial lease. Plaintiff Wyndham Properties II, Ltd.

(“Wyndham”) and Defendant Buca Texas Restaurants, L.P. (“Buca”) entered into a Net Lease 

Agreement (“Lease”) dated January 1, 2002 under which Buca leased the premises from Wyndham 

for a period of fifteen years (with options to extend the term) to operate a restaurant known as 

Buca di Beppo in Southlake, Texas. ECF No. 11 at 1. In 2016, the parties amended and reinstated

the lease following Buca’s default on its rental obligation and Wyndham’s pending termination of 

the lease. Id at 2. This first amendment included, in part, a late fee penalty of five percent if Buca 

failed to pay any future rental payment within the first five days of the month. ECF No. 25 at 5. 

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Two years later in 2018, again as a result of Buca’s default on its rental obligation and 

Wyndham’s pending termination of the lease, the parties agreed to amend the lease by signing the 

second amendment. ECF No. 25 at 5. In 2019, Wyndham filed a petition in state court to evict 

Buca for failure to pay its annual consumer price index adjustment. ECF No. 25 at 5. After a jury 

trial, but before the verdict was read, the parties settled and executed a third amendment to the 

lease, which is the subject of the instant case. Id. This third amendment, in part, attempts to define 

the circumstances and process under which Wyndham can terminate the lease. Id. at 6. 

In January 2022 another dispute arose over whether the conditions of the third amendment 

had been met, and Wyndham filed this lawsuit under Chapter 24 of the Texas Property Code, 

seeking forcible detainer of its premises as well as for breach of contract. ECF No. 11 at 1. On 

December 5, 2022, the parties tried the case to a jury in this Court that returned a verdict in favor 

of Buca. ECF No. 78. The Court ordered in its final judgment that “costs shall be borne by 

Plaintiff.” Id. The parties’ lease agreement contains a provision awarding attorneys’ fees, court 

costs, and other litigation expenses to the prevailing party. ECF No. 26 at 103. The relevant 

provision states: “ATTORNEYS’ FEES. Any attorney fees reasonably incurred by a successful 

party to the enforcement of this lease shall be paid by the unsuccessful party, which shall include 

court costs and other reasonable fees.” ECF No. 81 at 42. 

II. LEGAL STANDARDS

Buca seeks reasonable attorneys’ fees under Federal Rule of Civil Procedure 54(d)(2).

Pursuant to Texas law, which applies in this diversity case, Buca is entitled to recover reasonable 

and necessary attorneys’ fees as the prevailing party on its breach of contract claim. Tex. Civ. Prac.

& Rem. Code § 38.001(8) (West 2022); Kona Tech. Corp. v. Southern Pac. Transp. Co., 225 F.3d

595, 614 (5th Cir. 2000) (“[W]hen a prevailing party in a breach of contract suit seeks attorneys’

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fees, an award of reasonable fees is mandatory under Tex. Civ. Prac. & Rem. Code Ann. §

38.001(8).”). “Although courts should consider several factors when awarding attorney fees, a 

shorthand version of these considerations is that the trial court may award those fees that are 

‘reasonable and necessary’ for the prosecution of the suit.” Stewart Title Guar. Co. v. Sterling, 822

S.W.2d 1, 10 (Tex. 1991).

This Court uses the “lodestar” method to calculate attorneys’ fees. Heidtman v. Cty. of El

Paso, 171 F.3d 1038, 1043 (5th Cir. 1999). The lodestar equals the number of hours that an 

attorney reasonably spent on the case multiplied by an appropriate hourly rate, which is the market 

rate in the community for similar work. See Smith v. Fuller, P.A. v. Cooper Tire & Rubber Co.,

685 F.3d 486, 490 (5th Cir. 2012). The party seeking to recover attorneys’ fees must establish the 

reasonableness of the number of hours expended through evidence of adequately recorded time 

records. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). The Court uses the time reflected 

in the records as a benchmark and then excludes any excessive, duplicative, unnecessary, or 

inadequately documented charges. See id. The hours remaining are those reasonably expended.

There is a strong presumption of the reasonableness of the lodestar amount. See Perdue v.

Kenny A., 559 U.S. 542, 552 (2010). “However, after calculating the lodestar, a district court may 

enhance or decrease the amount of attorney's fees based on the relative weights of the twelve 

factors set forth in Johnson v. Georgia Highway Exp., Inc., [488 F.2d 714 (5th Cir. 1974)].” Black

v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013). Because the lodestar is presumed to be 

reasonable, it should be modified only in exceptional cases. See Watkins, 7 F.3d at 457.

III. ANALYSIS 

Buca filed its Motion pursuant to federal and Texas law and the parties’ lease allowing the

prevailing party “fees reasonably incurred by a successful party to the enforcement of this lease.” 

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ECF No. 80 at 1-2. Its counsel, Wick Phillips Gould & Martin (“Wick Phillips”), charged an 

average rate of $477 per hour for 365 hours of billable time and costs that total $165,340.98. ECF

No. 81 at 122-129. In his supporting affidavit, Buca’s lead counsel and proffered expert on attorney 

fees, Rusty O’Kane, testified that he reviewed all legal invoices, considered his personal 

involvement in the case in reviewing the entries, and interviewed any staff concerning “any 

potential perceived inefficiencies to come to a final opinion as to reasonableness of the fees 

incurred.” ECF No. 87 at 7. He further stated that he appropriately staffed this matter with a 

partner, senior associate, junior associate, and legal assistant. Id. Mr. O’Kane routinely discounted 

monthly invoices sent to his client, and also discounted an additional ten percent of the total bill 

“to account for billing discretion-related issues” including those raised in Wyndham’s response to 

the Motion. Id. at 8. Besides attorney fees and costs, Buca also seeks post judgment interest on the 

total award under the applicable federal rate pursuant to 28 U.S.C. § 1961. ECF No. 80 at 8. 

Wyndham does not dispute the hourly rate, qualifications, or calculations used to determine 

the fee amount. Instead, it asserts that Buca unnecessarily removed this case to federal court when 

a forcible entry and detainer action could have quickly and inexpensively resolved the matter in 

state court. ECF No. 83 at 7-8. Wyndham asserts that Buca’s time entries improperly include (1) 

block billing, (2) vague or ambiguous tasks, (3) clerical tasks, (4) duplication of multiple attorneys’ 

time, (5) unsuccessful or unpursued claims, and (6) unreasonable reimbursement of costs for online 

research, vague delivery entries, and lunch during trial. The Court considers each argument in turn. 

A. Reasonable Hours Expended through Summary Judgment

To begin, Wyndham argues that the hours Buca’s counsel spent on this case were 

unreasonable, in part, because of Buca’s decision to remove what essentially is a small claim 

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eviction case to federal court. Wyndham cites Mr. O’Kane’s affidavit opposing Wyndham’s 

Motion for Summary Judgment in support of its argument:

[Wyndham’s counsel] requests $40,321.25 as reasonable and 

necessary fees with regards to Plaintiff’s Motion for Summary 

Judgment.... [B]ased on my familiarity with rates charged in Dallas 

and Tarrant County, Texas for similar types of litigation by 

attorneys of comparable skill, it is my opinion that the number of 

hours multiplied by the (unsupported) rates provided in the 

Bettinger Declaration is neither reasonable nor necessary for 

plaintiffs pursuing this type of dispute (small claims eviction 

matter)....

ECF No. 29 at 4. Recognizing that Mr. O’Kane testified that $40,321.25 is neither reasonable nor 

necessary for the work that Wyndham’s counsel undertook through the filing of its Motion for 

Summary Judgment, the Court cannot award Buca over $70,000 for the fees that it incurred 

through the same filing of its own Motion for Summary Judgment. ECF No. 81 at 122-125. 

Accordingly, the Court reduces the fees for the legal work that Buca’s counsel performed through 

the filing of Buca’s Motion for Summary Judgment to $40,320.25, which is the most that Mr. 

O’Kane’s testimony quoted above would support as a reasonable fee through the filing of that 

Motion. 

B. Buca’s choice to litigate in federal court

Wyndham argues that even though Buca was entitled to remove this case to federal court 

it should not recover all associated fees because doing so was unreasonable and unnecessary. ECF 

No. 83 at 6-8. Wyndham provides examples of what appropriate attorneys’ fees would have been 

had the case remained in state court and asserts that these amounts are the true measure of 

reasonableness for Buca’s attorney fees in this case. Id. at 8. However, Wyndham offers no 

authority, and the Court is aware of none, which limits the amount of attorney fees recoverable in 

a case removed to federal court to what the fees would have been if the case had not been removed. 

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The Court determined that Buca’s removal was proper and denied Wyndham’s Motion to 

Remand. ECF No. 16. Moreover, there is no way of knowing how the facts in this case would have 

played out to a state court jury, and whether the party that did not prevail would appeal. This 

uncertainty leaves the Court without any real indication of what Buca’s fees would have been in a 

state court case on the issues tried here. However, it is unnecessary to play through hypothetical 

scenarios because Buca was within its rights to remove the case and should not be penalized for 

doing so. Accordingly, the Court declines to further reduce Wick Phillips’ fees because Buca chose

to litigate this case in federal court. 

C. Block Billing

“The term ‘block billing’ refers to the disfavored ‘time-keeping method by which each 

lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing 

the time expended on specific tasks.’” Hoffman v. L & M Arts, No. 3:10-CV-0953-D, 2015 WL

3999171, at *4 n.5 (N.D. Tex. July 1, 2015) (quoting Fralick v. Plumbers & Pipefitters Nat'l

Pension Fund, No. 3:09-CV-0752-D, 2011 WL 487754, at *4 (N.D. Tex. Feb. 11, 2011)). Block 

billing “prevents the court from accurately determining the time spent on any particular task, thus 

impairing the court's evaluation of whether the hours were reasonably expended.” Id. However, 

“most courts that have addressed block billing have concluded that denying all block-billed 

attorney's fees is not appropriate.” Bramlett v. Medical Protective Co. of Fort Wayne, Ind., No.

3:09-CV-1596-D, 2010 WL 3294248, at *3 (N.D. Tex. Aug. 20, 2010) (citing Trulock v. Hotel

Victorville, 92 F. App’x 433, 434 (9th Cir. 2004) (holding that block billing “is not a basis for 

refusing to award attorneys' fees”)). “[M]any courts reviewing block-billed time entries have 

performed a percentage reduction either in the number of hours or in the lodestar figure, typically 

ranging from 10% to 30%.” Bramlett, 2010 WL 3294248, at *3 (emphasis added).

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Although counsel is “not required to record in great detail how each minute of his time was 

expended ... at least counsel should identify the general subject matter of his time 

expenditures.” Thermotek, Inc. v. Orthoflex, Inc., Nos. 3:11-CV-870-D, 3:10-CV-2618-D, 2016

WL 6330429, at *9 (N.D. Tex. Oct. 27, 2016) (noting the fee applicant “must present detailed time 

records of the hours expended by each lawyer indicating the nature of the particular work done by 

each, but these records do not need to be perfect”) (quoting Hensley v. Eckerhart, 461 U.S. 424,

437 n.12 (1983)).

After reviewing the entire record, Wick Phillips’ entries include the attorney’sinitials, date, 

number of hours expended, and a brief description of the work performed. See ECF No. 81 at 122-

129. Further, the block-billed entries are not for large amounts of time. Often, Buca’s entries are 

for fewer than six hours. Id. The longer time entries offer more substantive, detailed descriptions 

of the different types of work performed during those periods by particular lawyers. Id. The Court 

finds that the block-billed time entries do not make it “impossible to conduct meaningful review 

and determine the precise number of hours that should be reduced ....” Barrow, 2005 WL 6789456

at *12. Therefore, the Court does not reduce the fees claimed due to block billing. 

D. Vague Time Entries 

A party may not recover for time that is inadequately documented. Combs v. City of

Huntington, 829 F.3d 388, 392 (5th Cir. 2016). Similarly, a “court may properly reduce or 

eliminate hours when the supporting documentation is too vague to permit meaningful 

review.” La. Power & Light Co. v. Kellstrom, 50 F.3d. 319, 324 (5th Cir. 1995); see

e.g., Thermotek, Inc., 2016 WL 6330429, at *10-11 (reducing lodestar by 10% for “overly redacted 

entries and a lack of billing judgment” after the responding party argued that “the redactions 

throughout the Declaration ... render[ed] the original description vague.”). Vague entries are those 

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that are “not illuminating as to the subject matter” or “vague as to precisely what was 

done.” Barrow, 2005 WL 6789456, at *11 (citation omitted). Examples such as: “revise 

memorandum,” “review pleadings,” “review documents,” and “correspondence” are sufficiently 

vague that the court could accept or reject them in a fee application. Id. (citation omitted).

But the Court is not convinced that the work challenged here constitutes vague entries. The 

entries, similar to the block billing discussion above, describe who did what work, when, and 

include sufficient detail of the tasks allocated. Bramlett, 2010 WL 3294248 at *3. Because the 

Court finds that these tasks are informative of the subject matter, the Court does not make any

deductions for vague time entries. 

E. Clerical Tasks 

Wyndham identifies several examples of administrative or clerical tasks billed as attorneys’

fees. ECF No. 83 at 10-11. Wyndham argues that the Court should not accept these entries and 

award attorney fees for clerical tasks such as filing court documents, calendaring events, 

processing billing invoices, and requesting copies of documents. Id. Buca disagrees, contending 

that the fees are customary, thereby presumed to be reasonable. ECF No. 87 at 7; see Rohrmoos 

Venture v. UTSW DVA Healthcare, LLP. 578 S.W.3d 469, 498-99. (Tex. 2019). Buca also asserts 

that it already took these adjustments into account when requesting fees and applied more than a 

ten percent discount and reduction to its lodestar amount to account for any inefficiencies.

“Clerical work is not recoverable in an award of attorneys’ fees.” Black, 2014 WL 

3534991, at *6. This Court recently concluded that clerical entries such as those listed above 

should be stricken. Tovar v. Sw. Bell Tel., L.P., No. 3:20-CV-1455-B, 2022 WL 2306926 (N.D. 

Tex. June 27, 2022) (collecting cases). Wyndham’s points are well-taken, and the Court reduces 

the hours expended after Summary Judgment through trial, by 6.99 hours of Alexendra Wahl’s 

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time at an hourly fee of $485; by .55 of an hour of Stafford Brantley’s time at $405 per hour; and 

.66 of an hour of Mr. O’Kane’s time at $535 an hour, for a total reduction of 8.2 hours and 

$3,349.80 in fees for clerical work that Wick Phillips billed at attorneys’ rates.

F. Duplicative Work 

Wyndham provides multiple examples where three attorneys simultaneously represented

Buca in similar tasks, resulting in duplicative efforts. ECF No. 83 at 13. Buca contends that its ten

percent deduction accounts for any double or triple billing. ECF No. 87 at 8. Further, Buca states

that it did not bill for much of Mr. O’Kane’s oversight of other lawyers and staff in this case. Id.

The Court finds that it was unreasonable to bill for all of the time expended by three attorneys in 

the one-day jury trial of this case. One attorney represented Wyndham at trial, and three lawyers 

appeared for Buca. While the Court recognizes that multiple lawyers often collaborate in preparing 

for trial and that there is a need for less-seasoned lawyers to gain trial experience, it is unreasonable 

for Wyndham to have to pay for all of the hours incurred by Buca’s team at trial. Accordingly, 

there should be a reduction in the amount of time charged by the two additional lawyers. Therefore, 

the Court reduces the hours expended on the day of trial for Ms. Wahl by half to 7.5 hours at $485 

per hour, and for Mr. Brantley by three-fourths to 3.1 hours at $405 per hour for a total deduction 

of 16.8 hours and $7,404 in fees. The Court notes that there were other instances where multiple

attorneys worked on parts of this case simultaneously, but does not find that the time spent or

attention to the projects were duplicative to the point of unreasonableness, thereby warranting

further reduction.

G. Unsuccessful or Unpursued Activities 

Wyndham next argues that the Court should reduce the amount of fees awarded for 

discovery motions not filed, an unsuccessful Motion for Summary Judgment, and the unsuccessful 

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Motion for Directed Verdict. ECF No. 83 at 17-20. Buca contends that the lease only requires 

reasonableness to recover fees from Wyndham, not necessity. ECF No. 87 at 4. Success does not 

necessarily determine reasonableness, and simply because the Court denied both parties’ motions

for summary judgment does not make the decision to file the motion an unreasonable one. Nor is 

it automatically unreasonable to spend time preparing a discovery motion that ultimately was not 

filed. However, the Court does find that the twelve hours of attorney time charged in connection 

with Buca’s Motion for Directed Verdict Motion was not reasonable. In a one-day trial in which 

it was clear that the Court would submit the case to the jury, that amount of time spent on the 

motion was unreasonable. Accordingly, the Court reduces the hours spent on that motion by 5.5 

of Mr. Brantley’s hours at $405 per hour and 1.2 of Mr. O’Kane’s hours at $535 per hour for a 

total reduction of 6.7 hours and $2,869.50 in fees. 

After reviewing the record, the arguments of counsel, and applicable legal authority, 

including the Johnson factors, the Court finds that none of the relevant authority weighs in favor 

of further modifying the lodestar. Although Mr. O’Kane stated that he reduced the claimed 

attorneys’ fees by ten percent and that this adjustment should address any of Wyndham’s 

arguments, the Court does not consider such a general reduction to adequately address the issues 

noted above involving billing for clerical tasks, duplicative billing, and billing an unreasonable 

number of hours for the preparation and argument of the Motion for Directed Verdict. Instead, the 

Court considered the ten percent reduction described by Mr. O’Kane as part of its determination 

of a reasonable attorneys’ fee award in this matter and made the additional adjustments described 

above.

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H. Reimbursement of Miscellaneous Costs 

Wyndham questions the reasonableness of Buca’s requests for reimbursement of costs for 

online research, vague deliveries, and lunch on the day of the trial. ECF No. 83 at 20. Wyndham 

contends that it has met its burden to recover these expenses. ECF No. 87 at 3. Courts may award 

computer-assisted research costs as part of its attorneys’ fees awards “if [counsel] normally bills 

its paying clients for the cost of online research services[.]” Fluor Corp., v. Citadel Equity Fund 

Ltd., No. 3:08-cv-1556-B, 2011 WL 3820704 at *6 (N.D. Tex. 2011) (quoting Arbor Hill 

Concerned Citizens Neighborhood Ass’n. v. Cnty. of Albany and Albany Cnty. Bd. Of Elections, 

369 F.3d 91, 98 (2d Cir. 2004)). However, Buca has not produced any evidence to show that it 

normally bills its clients for online research.

A party seeking reimbursement of costs for deliveries and other miscellaneous costs also 

must establish that the amounts requested are reasonable, and the party seeking reimbursement 

meets that burden only by “presenting evidence that is adequate for the court” to determine what 

should be included in the reimbursement. Louisiana Power & Light Co., v. Kellstrom, 50 F.3d 319, 

324 (5th Cir. 1995). Buca has not presented any evidence to establish that its costs associated with 

delivery charges or lunch on the day of trial were reasonable. Accordingly, the Court subtracts 

$1,110.26 expenses for online research, $278.74 for vague delivery entries, and $65.37 for lunch 

during trial for a total reduction of $1,454.37. 

I. Post Judgment Interest 

Federal courts award post judgment interest pursuant to 28 U.S.C. § 1961. The statute 

grants interest “from the date of the entry of the judgment” at a rate “equal to the weekly average 

1-year constant maturity Treasury yield ... for the calendar week preceding ... the date of the 

judgment.” 28 U.S.C. § 1961(a). Post judgment interest compounds annually and is “computed 

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daily to the date of payment.” Id. § 1961(b). The principal for calculating post judgment interest 

is “the entire amount of the final judgment,” including attorneys’ fees, costs, and prejudgment 

interest. Fuchs v. Lifetime Doors, Inc., 939 F.2d 1275, 1280 (5th Cir. 1991). The post judgment 

interest amount for the calendar week preceding the date of judgment is 4.7 percent. United States 

District Court for the Northern District of Texas, Publications - Post Judgment Rate (February __, 

2023), http://www.txnd.uscourts.gov/publications/pjrate.html (reporting that the current post

judgment interest rate from February 18, 2023 to February 24, 2023 is 5.06 percent). Post judgment 

interest will apply to the total amount of the judgment and will be calculated from the date 

judgment is entered at the applicable federal rate of 5.06 percent until it is paid in full.

IV. CONCLUSION

Based on the testimony of Buca’s expert and lead counsel, the Court finds that $40,320.25 

is a reasonable attorneys’ fee for the initial phases of litigation through the Motion for Summary 

Judgment filings. The Court agrees with Wick Phillips’ ten percent reduction for the latter part of 

litigation, after the summary judgment stage through the trial. Additionally, there should be further 

reductions of 8.2 hours for clerical work, 16.8 hours for duplication of effort, and 6.7 hours for 

time spent in preparing the unsuccessful Motion for Directed Verdict Motion for additional 

reductions of 31.7 hours and $13,772.30 in fees. The Court reduces the amount of costs to be 

included in the award by $1,454.37. For the foregoing reasons, the Court GRANTS Buca’s Motion 

in part and ORDERS Wyndham to pay Buca $120,359.90 in attorney fees, $5,048.61 in costs, and 

post judgment interest on the entire amount of the judgment ($125,408.51) at the current federal 

rate of 5.06 percent per annum from the date of judgment until it is paid in full.

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It is so ORDERED on March 7, 2023.

____________________________________

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

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