IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SYNERGY ADVISORY SERVICES, LLC, §

Plaintiff, §

§

v. § Civil Action No. 3:22-CV-1699-BH

§

CLEARPRISM, LLC, §

Defendant. § Consent Case1

MEMORANDUM OPINION AND ORDER

Based on the relevant filings, evidence, applicable law, and lack of opposition, Plaintiff’s

Motion for Attorneys’ Fees and Costs, filed September 19, 2023 (doc. 27), is GRANTED.

I. BACKGROUND

This application for attorney’s fees and costs arises out of a lawsuit filed by Synergy

Advisory Services, LLC (Plaintiff) against ClearPrism, LLC (Defendant) for breach of contract.

(doc. 6 at 4.)2

 By memorandum opinion and order filed September 5, 2023, Plaintiff’s motion for

partial summary judgment on its claim for breach of contract was granted, and Defendant was found

liable for damages in the amount of $141,250.00. (See doc. 24 at 6-7.) The parties agreed that the

only issue remaining for determination was the amount of reasonable and necessary attorney’s fees

and costs to which Plaintiff was entitled. (See doc. 25.) On September 19, 2023, Plaintiff filed its

motion for attorney’s fees and costs, under the contract and state law, and the parties stipulated to

determination of the claim for fees based on the submissions without a hearing. (See docs. 27, 31.)

Defendant ultimately did not respond to the motion.

1

By consent of the parties and order filed November 15, 2022 (doc. 13), this matter has been transferred for the

conduct of all further proceedings and the entry of judgment.

2

Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page

numbers at the bottom of each filing.

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II. ATTORNEY’S FEES AND COSTS3

“The award of attorneys’ fees is governed by the law of the state whose substantive law is

applied to the underlying claims.” Ingalls Shipbuilding v. Fed. Ins. Co., 410 F.3d 214, 230 (5th Cir.

2005). Under Texas law, a party may recover attorney’s fees only when allowed by statute or

contract. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 484 (Tex. 2019);

see also Tex. Civ. Prac. & Rem. Code § 38.001(8). 

Here, the Settlement Agreement provides: “In the event that either Party sues to enforce this

Agreement, the prevailing Party shall be entitled to any reasonable and necessary attorney's fees,

costs or expenses it incurs in such action. (doc. 29 at 5.) Because Plaintiff prevailed on its claim for

breach of the Settlement Agreement, it is entitled to its reasonable attorney’s fees and costs under

this agreement.

Under Texas law, the party seeking to recover attorney’s fees “bears the burden of

establishing the fees are reasonable and necessary.” In re Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 809

(Tex. 2017). In adjudicating an attorney’s fee award, a court first calculates a “lodestar” fee by

multiplying the reasonable number of hours expended on the case by the reasonable hourly rates for

the participating lawyers. See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012). The fee

claimant bears the burden of providing sufficient evidence on both the reasonable hours worked and

the reasonable rate. Id. “Sufficient evidence includes, at a minimum, evidence of (1) particular

services performed, (2) who performed those services, (3) approximately when the services were

3

Plaintiff cites Rule 54(d) in support of its motion for attorney’s fees and costs, but that rule provides that a

claim for attorney’s fees and related non-taxable costs must be made by motion filed no later than 14 days after the entry

of judgment. See Fed. R. Civ. P. 54(d)(2). The “entry of judgment” to which Rule 54(d)(2)(B) refers is the entry of

judgment by the district court. See United Indus., Inc. v. Simon-Hartley, Ltd., 91 F.3d 762, 765-66 (5th Cir. 1996). No

judgment has yet been entered. 

2

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performed, (4) the reasonable amount of time required to perform the services, and (5) the

reasonable hourly rate for each person performing such services.” Rohrmoos Venture, 578 S.W.3d

at 502.

In Texas, uncontroverted attorney testimony or an affidavit testifying to the attorney’s

qualifications, reasonableness of the attorney’s fees, and the basis for the opinion, may be sufficient

to support an award of attorney’s fees. See Clary Corp. v. Smith, 949 S.W.2d 452, 469 (Tex.

App.–Fort Worth 1997, no writ) (“Where ... trial counsel’s testimony concerning attorneys’ fees is

clear, positive and direct, and uncontroverted, it is taken as true as a matter of law. This is especially

true where the opposing party had the means and opportunity of disproving the testimony, if it were

not true, and failed to do so.”). “The court, as a trier of fact, may award attorneys’ fees as a matter

of law in such circumstances, especially when the opposing party has the means and opportunity of

disproving the testimony or evidence and fails to do so.” Ragsdale v. Progressive Voters League,

801 S.W.2d 880, 882 (Tex. 1990) (emphasis added).

Second, a court must consider whether the lodestar figure should be adjusted upward or

downward to achieve a reasonable fee award depending on its analysis of several factors.4Rohrmoos

4

In Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997), the Texas Supreme Court

identified the following factors to determine the reasonableness of attorney’s fees:

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

required to perform the legal service properly;

(2) the likelihood ... 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.

Id. at 818 (citing Tex. Disciplinary R. Prof’l Conduct 1.04(b)).

3

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Venture, 578 S.W.3d at 501. Because the lodestar is presumed to be reasonable, it should be

modified only in exceptional cases. See El Apple I, 370 S.W.3d at 765 (citing Perdue v. Kenny A.,

559 U.S. 542, 552 (2010)). The party seeking an enhancement or reduction to the lodestar figure

must provide specific evidence to overcome the presumptive reasonableness of the lodestar.

Rohrmoos Venture, 578 S.W.3d at 501.

Here, Plaintiff submits declarations from two of its counsel and billing records. (See doc. 29

at 11-55.) The declarations set out the hourly rates for the individuals who worked on the case, state

that the rates are reasonable based on their skills and experience, and opine that $27,742.50 for

attorney’s fees and $409.86 for costs and expenses are reasonable and necessary. (Id. at 11-15.) The

attached billing records itemize the time spent on this case with details regarding the specific work

performed, the charges for that time, and the incurred costs and expenses. (Id. at 16-55.) Under

Texas law, Plaintiff’s evidence is “legally sufficient” for an award of attorney’s fees. See In re

Estate of Tyner, 292 S.W.3d 179, 184 (Tex. App–Tyler 2009, no pet.) (“[A]ttorney swore under oath

that he is a licensed attorney, he is familiar with the reasonable and necessary attorney’s fees

charged for appeals in civil actions such as this case, he has personal knowledge of the services

rendered to [the party] in this matter, and those services were reasonable, necessary, and customary.

Thus, [the party’s] attorney’s affidavit sufficiently established reasonable attorney’s fees and is

legally sufficient to support the trial court’s award of attorney’s fees.”). Plaintiff’s lodestar figure

represents a reasonable fee award and neither party argues for an adjustment to the lodestar.

Considering the relevant factors, no adjustment to the lodestar figure is necessary. See Arthur

Andersen, 945 S.W.2d at 818. Because the attorney’s fees and costs that Plaintiff seeks is reasonable

4

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as a matter of law, it is entitled to the full amount requested. See Ragsdale, 801 S.W.2d at 882.5

IV. CONCLUSION

Plaintiff’s motion for attorney’s fees and costs is GRANTED, and it is awarded $27,742.50

in attorney’s fees and $409.86 in costs.

SO ORDERED on this 13th day of October, 2023.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

5

Plaintiff also seeks attorney’s fees under § 38.001 of the Texas Civil Practices & Remedies Code, which allows

the recovery of reasonable attorney’s fees from an individual or corporation “if the claim is for ... an oral or written

contract.” Under Texas law, “[p]arties are free to contract for a fee-recovery standard either looser or stricter than

Chapter 38.” Intercontinental Group P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653 (Tex. 2009). When, as

here, the contract at issue provides for the recovery of attorney’s fees, “the terms of the contract, not statute, control the

outcome of this issue.” Mohican Oil & Gas, LLC v. Scorpion Expl. & Prod., Inc., 337 S.W.3d 310, 321 (Tex.

App.—Corpus Christi 2011, pet. denied) (citations omitted); accord Intercontinental Group P’ship, 295 S.W.3d at 653

(determining attorney’s fees according to mandatory fee-award contract and looking to § 38.001 only as instructive but

not controlling); see Garcia v. Wells Fargo Bank, N.A., No. 3:12-CV-645-P, 2012 WL 12873202, at *6 (N.D. Tex. Oct.

26, 2012) (citing id.) (“Contractual agreements providing for the recovery of attorney’s fees supersede the statutory

provisions for the recovery of fees found in Texas Civil Practice & Remedies Code chapter 38.”). Because the Settlement

Agreement “provide recovery for attorney’s fees and costs, the court need not address whether [Plaintiff] is entitled to

such fees and costs pursuant to Section 38.001 of the Texas Civil Practice and Remedies Code.” Branch Banking & Tr.

Co. v. Mansfield Barbecue, LLC, No. 3:19-CV-158-L, 2019 WL 5684430, at *3 (N.D. Tex. Oct. 31, 2019).

5

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