Affirmed and Opinion Filed August 3, 2015 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-14-00774-CV ROHRMOOS VENTURE, ERIC LANGFO RD, DAN BASSO AND TOBIN GROVE, Appellants V. UTSW DVA HEALTHCARE, LLP, Appellee On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-10-15959 

### MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Whitehill This case involves claims for breach of the im plied warranty of suitability and breach of contract arising out of a commerc ial lease. The jury found that both parties breached the lease, but the landlord breached first, a nd that the landlord breached the implied warranty of suitability. The trial court entered judgment for the tena nt, UTSW DVA Healthcare, LLP (“UT”), against the landlord (Rohrmoos Venture) , Eric Langford, Dan Basso, a nd Tobin Grove (collectively “Rohrmoos”). Rohrmoos appealed. Rohrmoos’s appellate brief presents these eight issues: 1

1 The two lists of issues in Rohrmoos’s brief are numbered diff erently and do not correspond to the arguments in the text. For e xample, the list of “issues presented for review” includes an additional issue (numbe red four) that asserts the trial court erred by giving an inco rrect instruction on the implied warranty of suitability . There is no separate section of the brief th at argues this issue; the only reference is wi thin the body of the seventh issue complaining about the jury’s answers to the charge . Therefore, we address the complaint about the instruction in conjunction with the seventh issue. We number the issues in the order in which th ey appear in the Table of Contents section of the brief and add ress the points raised in the body that reference these numbers.–2– (1) The parties contracted for an exclusive remedy that superseded the implied warranty of suitability

. (2) – (3) The trial court e rred in admitting certain expert testimony and documents, without which there is no evidence or insuffi cient evidence that Rohrmoos breached the implied warranty of suitability. (4) There is no evidence or insufficient evidence to support the jury’s finding that Rohrmoos breached the implied warranty of suitability because there must be evidence of (a) defect at the lease’s inception; (b) the defect mu st be latent and vital; and (c) the defect must exist at the lease termination. (5) UT waived any breach of the implied warranty by remaining on the property for three years after discovering the alleged breach. 2 (6) The trial court erred in awarding UT atto rney’s fees because (a) the lease allegedly does not provide for attorneys’ fees to UT; (b) UT cannot recover its attorneys’ fees under the declaratory judgment statute because UT allege dly abandoned its declaratory judgment claim; and (c) there is no evidence supporti ng the fee amounts the jury found. (7) The trial court erroneously refused to disregard the jury’s answers to questions 1– 6 in the charge because those answers are either unsu pported by the evidence, or they are matters of law which the court is solely re sponsible for determining; and (8) The trial court should have entered judgm ent against UT because there is evidence that UT breached the lease and Rohrmoos ’s damages evidence was uncontroverted. For the reasons discussed below, we affirm the trial court’s judgment.

2 Although the Table of Contents appears to state this issue more broadly, the text of Rohrmoos’s brief casts this argument sole ly in terms of the implied warranty of suitability.–3– I. Background The facts are detailed, and the record is extensive. But we discuss the facts generally because we decide this case on settled legal principles that do not need a detailed factual discussion.
Water Problems This case revolved around water problems in a commercial building UT leased from Rohrmoos to operate as a dialysis clinic. Ther e were extensive efforts to determine what was causing those problems. When Rohrmoos did not solve the problem, UT moved out before the lease term expired. The Trial After moving out, UT sued Rohrmoos and Langf ord for breach of the implied warranty of suitability and br each of contract. 3 UT also requested a declaratory judgment that: (i) a casualty occurred as defined in the lease, (ii) Rohrmoos failed to remedy the casualty and (iii) UT had the right to terminate the lease. Rohrmoos answered the lawsuit and count erclaimed for negligence and breach of contract. Rohrmoos also asserted several a ffirmative defenses, including waiver and prior material breach. UT asserted the following affirmative defenses in response to Rohrmoos’s counterclaim: (i) contributory negligence, (ii) failure to mitigat e damages, (iii) termination of the contract was justified due to health and safety concerns; (i v) “waiver or estoppel,” and (v) statute of limitations.

3 The live pleading at trial also includes claims against Rohrmoos general partners Dan Basso and Tobin Grove.–4– Before trial, Rohrmoos moved to exclude th e testimony from an engineer UT retained, Mike Stenstrom, and letters he wrote regarding th e property. After two h earings, the trial court allowed some of Stenstrom’s testimony and a ll but one section of one of his letters. Other UT witnesses included the property engineer Boyce Farrar, the property administrator, a state inspector, the facility maintenance man, and other UT personnel involved in operating the facility. UT’s witnesses testified a bout the water and flooring problems and the unsuccessful efforts to resolve these problems. Because the issues were not resolved, and UT was concerned about patient health and safety, it terminated the lease and moved the facility to another location. Rohrmoos’s witnesses included engineer To m Witherspoon, a plumber, an architect, two architectural engineers, two real estate service professionals, two ceramic tile experts, two of the facility’s medical directors, and others. In s hort, Rohrmoos elicited te stimony that (i) the floor tile buckled because it was installe d incorrectly and (ii) the water issues were not caused by a structural defect and did not render the facility unsuitable for a dialysis clinic. The case was submitted to the jury after nine trial days and with over nine hundred exhibits. UT did not seek to recover damages on its breach of implied warranty or breach of contract claims. Instead, in questions 1–3, th e jury was asked whether Rohrmoos failed to comply with the lease (and whether UT waived su ch breach), whether UT failed to comply with the lease, and if appropriate, which party fail ed to comply first. Question 4 asked whether Rohrmoos breached the implied warranty of suitab ility and whether UT waived any such breach. The charge also asked questions concerning atto rney’s fees for both parties that were not predicated on any affirm ative liability findings. Responding to the charge’s questions, the ju ry found that UT and Rohrmoos both failed to comply with the lease, that Rohrmoos failed to comply first, and that Rohrmoos breached the–5– implied warranty of suitability. The jury found attorney’s fees for both UT and Rohrmoos of $800,000 for trial court representa tion, $150,000 for representation at the Court of Appeals, and $75,000 for representation at the Texas Supreme Court. Based on the jury’s answers, the trial court entered final judgment against Rohrmoos for the amount of attorney’s fees that the jury found. Rohrmoos subsequently moved to reform the judgm ent, or alternatively, for a new trial. The trial court denied the moti on, and Rohrmoos appealed. The Appeal Rohrmoos’s appellate arguments largely cen ter on the jury’s finding that Rohrmoos breached the implied warranty of suitability . But, because we uphold the judgment on the prior material breach findings favoring UT, we need not (and do not) a ddress in detail those issues premised on the breach of implied warranty finding. II. Analysis A. Rohrmoos’s Second through Fifth Issues: Is the evidence suffic ient to support the breach of implied warranty finding? Rohrmoos’s issues two and three argue that , without Stenstrom’s and Farrar’s allegedly improper expert testimony and certain exhibits, th e evidence would be insufficient to support the jury’s finding that Rohrmoos breached the implied warranty of suitability . Likewise, Rohrmoos’s fourth issue argues that the evidence is insufficient to support certain elements of the implied warranty claim. Similarly, Rohrmoos’s fifth issue posits that UT waived its implied warranty claim by remaining on the property for th ree years after alle gedly discovering the breach. All of these arguments, however, are irrelevant unless Rohrmoos also defeats the answers to questions one through three, which support UT’s prior material breach of contract defense to Rohrmoos’s counterclaim. But, as discussed later, Rohrmoos does no t properly challenge the–6– sufficiency of the evidence to support th e jury’s breach of contract findings. 4 And unchallenged jury findings are binding on this court. Carbona v. CH Med., Inc ., 266 S.W.3d 675, 687 (Tex. App.—Dallas 2008, no pet.). Accord ingly, because the answers to questions one through three, which support UT’s prior material breach defens e to Rohrmoos’s counterclaim, are binding on us, we reject Rohrmoos’s issues two through fi ve, which we need not and do not address in further detail. See, e.g. , T EX
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. P. 47.1; Zurich Fin. Ltd. v. Davis , No. 09-09-00484-CV, 2010 WL 3910360, at *6 (Tex. App.—Beaumont Oct. 7, 2010, pet. denied) (mem. op.) (where unchallenged liability finding suppo rted judgment, challenged liabi lity finding was not reversible error). In addition, Rohrmoos has not demonstrated that the jury’s affirmative findings on breach of implied warranty and waiver caused it any harm. See T EX
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. P. 44.1; Lorusso v. Members Mut. Ins. Co ., 603 S.W.2d 818, 819–20 (Tex. 1980) (describing harmless error rule as common sense policy of not revers ing judgment unless error has co ntributed to adverse judgment in a substantial way); see also G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011). Rohrmoos does not explain how a jury finding that does not result in any damages or support the attorney’s fees award could be c onstitute anything more than harmless error, if it were error at all. For the above reasons, we resolve Rohrmoos ’s second, third, fourth and fifth issues against it. 5

4 Although Rohrmoos’s eighth issue summarily ar gues that we should reverse the judgment and render judgment in its favor for the “undisputed proof of loss,” this argument claims only that the amount of Rohrmoos’s damages resulting from UT’s breach are undisputed and i gnores the jury’s findings regarding Rohrmoos’s prio r material breach. And although the headi ng for the argument challenging the jury que stions on breach of contract and prior material breach says the jury’s answers are “uns upported by the evidence,” th e ensuing text does not make that argument. Therefore, we cannot address the su fficiency of the eviden ce to support the breach of contract findings. See T EX

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. P. 38.1. 5 In addition, Rohrmoos’s summary statements concerning the docum ents that it alleges were errone ously admitted (issue three) do not meet the requirement of the rules of appellate procedure. So even if th e issue was relevant, it was waived due to inadequate briefing. See T EX

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. P. 38.1.–7– B. Issue One: Did Article XIII provide UT’s exclusive remedy? Rohrmoos argues that article XIII of the l ease provides an exclusiv e repair remedy that superseded the implied warranty of suitability. 6 Rohrmoos states that UT “initially sued underArticle XIII,” but then “opted to invoke the [implied warranty] remedy rather than the nearlyidentical remedy it agreed to a ccept in the lease.” Accordi ng to Rohrmoos, “[b]ecause UT abandoned its exclusive legal remedy at trial, any judgment holding [UT] had the right to terminate the lease . . . is wrong and should be reversed.” As Rohrmoos observes, the article XIII theory was not tried or submitted to the jury. Rohrmoos did not assert that Article XIII supers edes the lease in its motion for new trial, and Rohrmoos does not otherwise identify any other por tion of the record where the issue was raised below. Thus, the argument was not preserved for our review. See T EX
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. P. 38.1. Moreover, the judgment does not award any relief based on the implied warranty breach finding. Accordingly, there could be no harm to R ohrmoos even if this point were before us.
See T EX
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. P. 44.1. We decide Rohrmoos’s first issue against it. C. Rohrmoos’s Seventh Issue: Did the tria l court erroneously refuse to disregard the jury’s answers to questions one through six because those answers are either unsupported by the evidence, or they are ma tters of law which the court is solely responsible for determining? 1. Introduction. Rohrmoos’s seventh issue complains that the trial court “erred by not ignoring the answers to jury questions 1, 2, 3, 4, 5, and 6 when it entered judgment” and globally asserts, by reference to a volume of the clerk’s record that is not in the record, that these issues have all been preserved for our review. Rohrmoos’s ensuing one paragraph argument re garding questions one

6 Article XIII of the Leas e, entitled “Destruction: Casualty” provides: “Damage or Destruction. In the event that during the term hereof the Premises or the Building shall be damaged or destroyed by fire, the elements, accident or other casualty (hereinafter a “Casual ty”), the rights and obligations of Landlord and Tenant shall be governed by this Article XIII. Immediately or as soon as reasonably practicable the reafter, Tenant shall notify Landlord of any damage or dest ruction to the Premises by a Casualty.”–8– through four and six essentially st ates that the questions were “unnecessary,” “irrelevant,” or “should not have been asked.” Rohrmoos’s argument concerning question 5 is that the jury instruction on the implied warranty of suitability was “legally improper.” For the following reasons, we disagr ee with Rohrmoos’s seventh issue. 2. Rohrmoos’s Challenges to Questions One through Four and Six. The Texas Rules of Appellate Procedure require that a brief “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”
T EX
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. P. 38.1(i). The appellate court has no dut y to brief issues for an appellant. Huey v. Huey , 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet. ). And the absence of appropriate record citations or a substantive analysis does not present an adequate appellate issue. WorldPeace v. Comm’n for Lawyer Discipline , 183 S.W.3d 451, 460 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (f ailure to offer argument, citations to record, or citations to authority waives issue on appeal); Devine v. Dallas Cnty. , 130 S.W.3d 512, 513–14 (Tex. App.—Dallas 2004, no pet.) (appellate waiver when a party fails to adequately brief a complaint, he waives the issue on appeal); see also Fredonia State Bank v. Gen. Am. Life Ins. Co ., 881 S.W.2d 279, 284– 85 (Tex. 1994) (appellate court has discretion to deem points of e rror waived due to inadequate briefing). That is, an appellant must discuss the fact s and the authorities relied upon as may be requisite to maintain the point at issue. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc ., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “This is not done by merely uttering brief conclusory statem ents, unsupported by legal citations.” Id.–9– Because Rohrmoos did not provide a clear a nd concise legal argumen t for its contentions, with appropriate legal citations and analysis, this issue has not been adequately briefed and is overruled as it concerns questi ons one through four and six. 3. Rohrmoos’s Challenge to Question Five. Because, as discussed in part A above, the an swer to question five does not affect the outcome, we need not and do not address Rohrm oos’s seventh issue arguments regarding that question. F. Rohrmoos’s Sixth Issue: Did the trial court err in it s attorney’s fees judgment favoring UT? 1. Introduction. The jury was asked to find the reasonable amount of UT’s attorney’s fees for representing UT in the trial c ourt, “through appeal to the Court of App eals,” and “for oral argument and through the comple tion of proceedings in the Supreme Court of Texas.” 7 To this end, the jury was instru cted to consider the Arthur Andersen factors in determining the reasonableness of the fee. 8 Based on that question and instru ction, the jury found that UT should recover $800,000 for trial court representation, $150,000 for Court of Appeals representation, and $75,000 for Texas Supreme Cour t representation and the trial court entered judgment in favor of UT on these findings. R ohrmoos challenges this fee award. Rohrmoos’s sixth issue posits that the trial court erred in awarding UT attorney’s fees because (a) the lease allegedly does not provide fo r attorneys’ fees to UT; (b) UT cannot recover its attorneys’ fees under the declaratory judgm ent statute because UT allegedly abandoned its

7 We have not been asked to decide whether th e appellate fees questions were properly phrased. 8 The Arthur Andersen factors include: (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 accep tance of the particular em ployment 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 obt ained; (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 la wyer or lawyers performing the services; a nd (8) whether the fee is fixed or conti ngent on results obtained or uncertainty of collection before the legal services have been rendered. See Arthur Andersen & Co. v. Perry Equip. Corp ., 945 S.W.2d 812, 818 (Tex. 1997). All but the eighth factor were included in the instruction here.–10– declaratory judgment claim; and (c) there is no evidence suppor ting the fee amounts the jury found. As discussed below, we conclude that UT was a prevai ling a party within the lease’s clause that permits a prevailing party in any dis pute to enforce the terms of the lease and that there is legally sufficient evidence supporting th e fee amounts the jury found in UT’s favor. Accordingly, we need not and do not discuss wh ether UT’s fee award would be proper under the attorney’s fees statute or the declaratory judgment act. Attorney’s fees may be recovered only if permitted by statute or contract. See 1/2 Price Checks Cashed v. United Auto. Ins. Co ., 344 S.W.3d 378, 382 (Tex. 2011). A trial court’s decision to award attorney’s fees at all is reviewed under an abuse of discretion standard. Bocquet v. Herring , 972 S.W.2d 19, 21 (Tex. 1998). The test for abuse of discretion is whether the trial court acted w ithout reference to any guiding rule s or principles—in other words, whether the act was arbitrary or unreasonable. See Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990). 2. The Lease’s Attorney’s Fees Clause. The lease provides that the “prevailing party” in an action to enforce the lease’s terms is entitled to recover its re asonable attorney’s fees: In any action to enforce the terms of th is lease, the prevailing party shall be entitled to an award for its reasonable attorney’s fees. Rohrmoos does not dispute that this case invo lved an action to enforce the lease’s terms but instead challenges whether UT was a “preva iling party.” To that end, Rohrmoos cites International Group Partnership v. KB Home Lone Star, L.P ., 295 S.W.3d 650, 655 (Tex. 2009), for the premise that we should look to the civil practice and remedies c ode chapter 38 “prevailing party” concept, which requires that a party recover damages to be entitled to recover its attorney’s fees in a breach of contract case. See Green Int’l Inc. v. Solis , 951 S.W.2d 384, 390 (Tex. 1997). Based on that premise and the fact that UT did not recover any damages on UT’s–11– breach of contract claim, Rohrmoos argues that UT was not a prevailing party in this case because it did not recover any damages on its br each of contract claim against Rohrmoos: Because UTSW did not recover affirmative relief or money damages, attorneys’ fees may not be awarded under the cont ract or under Texas Civil Practice & Remedies Code, Chapter 38. We disagree with Rohrmoos’s argument because that argument misapplies the supreme court’s holding in KB Home

. KB Home was applying a contract provision simila r to that in the lease, authorizing recovery of attorney’s fees by the “prevailing party.” As in this case, the contract did not define the term “prevailing party.” Id. at 653. Despite that similarity, howev er, we cannot conclude that KB Home controls the issue in this case. There, KB Home was the plaintiff and sought over $1 million in damages. Id . at 655. The jury, however, awarded no damages. Id. As a result, the supreme court held that KB “achieved no genuine success on its claim” becau se it neither received anything of value nor achieved a material alteration in its le gal relationship with the defendant. Id

. UT, by contrast, was not just the plaintiff, but also defended against Rohrmoos’s breach of contract counterclaim. UT did not seek any da mages. Instead, UT asked the jury to find that Rohrmoos breached the lease first, thereby relie ving it of the obligation for future performance and to avoid Rohrmoos’s undisputed damages on its breach of contract claim. Rohrmoos’s counterclaim damages were conditioned on an a ffirmative finding that UT was the first to breach. But the jury found that Rohrmoos breached the lease first and was therefore not entitled to recover damages. Unlike what happened in KB Home , these findings and the resulting judgment favoring UT “materially altered” the legal relationship betw een Rohrmoos and UT. For the above reasons, and because a prevailing party includes one who is vindicated by the court’s judgment, Johnson v. Smith , No. 07-10-00017-CV, 2012 WL 140654, at *3 (Tex.–12– App.—Amarillo 2012, no pet.) (mem. op.), we conclude that UT wa s the prevailing party and that the trial court did not err in awarding reasonab le attorney’s fees under the contract. Having determined that UT was entitled to recover its re asonable fees, we next a ddress whether there is legally sufficient evidence supporting the jury’s findings as to those amounts. 3. Sufficiency of the Trial Fees Evidence. Rohrmoos also asserts that there is no eviden ce or insufficient eviden ce to support the fee award amounts because UT’s attorney’s f ees expert offered no evidence of the Arthur Andersen factors and because UT’s counsel did not subm it his billing records. While we review the decision to award attorney’s f ees under the abuse of discreti on standard, the fee amount, if awarded, is reviewed under the legal and factual sufficiency standard. See Hunt v. Baldwin , 68 S.W.3d 117, 136 n. 8 (Tex. App.—Houst on [14th Dist.] 2001, no pet.). (a). “Ridiculously High” Fees. UT’s lawyer, Wade Howard, testified about UT’s attorney’s fees. He said that he has a very broad variety of litigation practice and that is all he has done for twenty years. His standard rate is $430 an hour and he has handled cases similar to this one. On cross-examination, Howard clarified that the $800,000 fees were necessary for his client because they were caused by the actions of opposing counsel. But he also said had this case been handled by both sides in a professional manner, the “attorney’s fees should have been in the 3-$400,000 range.” 9 Rohrmoos relies on Howard’s testimony that hi s fees were “ridicul ously high” to argue that there is no evidence of UT’s reasonable fees. This argument, however, ignores the testimony’s context. Howard said that the fees were $800,000, and th ough he considered the

9 When Howard’s testimony concluded, Rohrm oos moved to strike the testimony from the record because Howard “did not testify abo ut any Andersen factors which are necessary to be testif ied to, to prove reasonable and necessary a ttorney’s fees” and “therefore his testimon y is all just opinion and does not comply w ith the ethics rules.”–13– amount “ridiculously high,” the fees were necessa ry because the activity in the case exceeded the norm. Examples of what he considered excess ive activity included the designating of numerous experts, a high volume of depositions, document production, and motion practice. Testifying that the fees in a normal case should have been lower does not mean that the actual amount was not reasonable under the circumstances. (b). Billing Records. Additionally, Rohrmoos relies on El Apple I, Ltd. v. Olivas , 370 S.W.3d 757 (Tex. 2012) and its progeny to argue that atto rney’s fees awards must be s upported by some evidence of the actual work performed and suggests this evidence is lacking here because Howard did not submit his billing records. 10 This reliance is misplaced. El Apple was an employment discrimination and retaliation case brought under the Texas Commission on Human Rights Act. Id . at 760. In that case, the Court observed that Texas courts have used the lodestar method in awardi ng fees under the TCHRA because federal courts use the lodestar method in awardi ng fees under Title VII cases. Id. 11 Under the lodestar method, a claimant must produce evidence of who performed the legal services, when the services were performed, and the amount of time sp ent on various parts of the case. Id . at 763. The Texas Supreme Court, however, distingu ished the lodestar method from a traditional attorney’s fees award, stating, “[w]hile Texas courts have no t routinely required billing records or other documentary evidence to substantiate a claim for attorney’s fees, the requirement has merit in contested cases under the lodestar approach.” Id . at 762.

10 Although Rohrmoos did not object to the abse nce of billing records at tria l, this issue was raised in the motion for new trial

. 11 Under the lodestar method, the court determines the “reasonabl e hours spent by counsel in the case and a reasonable hourly rat e for such work.” Id . at 760. Then, the court multiplies the number of hour s by the applicable rate, yielding the lodestar. Id . The court then adjusts the lodestar up or down based on the Arthur Andersen factors. Id.–14– Moreover, in a subsequent opinion, the Texa s Supreme Court further clarified that even under the lodestar approach, El Apple does not hold that time records or billing statements are the only method of proof. See City of Laredo v. Montano , 414 S.W.3d 731, 735–37 (Tex. 2013). Likewise, we also recognize that El Apple does not require the admission of hourly time records in all cases, nor do we require that all at torney’s fees recoveries in Texas are governed by the lodestar method. S ee Metroplex Mailing Servs. LLC v. Donnelly & Sons Co ., 410 S.W.3d 889, 900 (Tex. App.—Dallas 2013, no pet.); see also Powell v. Penhollow, Inc., No. 05-13- 01653-CV, 2015 WL 4548862, at *15–16 (Tex. App.—Dalla s July 28, 2015, no pe t. h.) (lodestar required only in certain cases). Many of our sister courts agree. See Ferrant v. Grahm Assocs., Inc. , No. 02-12-00190- CV, 2014 WL 1875825, at *7 (Tex. App.—Fort Wo rth May 8, 2014, no pet.) (mem. op.) (time records not required in “ordinary non-lode star, hourly-fee breach of contract case); Concert Health Plan, Inc. v. Houston NW Partners, Ltd ., No. 14-12-00457-CV, 2 013 WL 2382960, at *9 n.17 (Tex. App.—Houston [14th Dist .] May 30, 2013, no pet.) (mem. op.) (lodestar method not required in all cases); Circle Ridge Prod. Inc. v. Kittrell Family Minerals, LLC , No. 06-13- 00009-CV, 2013 WL 3781367, at *7 (Tex. App.—Texar kana July 17, 2013, pet. denied) (mem. op.) (same). Here, Rohrmoos does not assert, and the reco rd does not show, that the lodestar method was statutorily required or that UT “chose to prove up attorney’s fees using this method.” See El Apple , 370 S.W.3d at 736; see also Long v. Griffin , 442 S.W.3d 253, 253 (Tex. 2014) (per curium) (referring to party “c hoosing” the lodestar method of proving atto rney’s fees). 12 The jury was not instructed to apply the lodestar method in determining a reasonable fee. We

12 Indeed, the only time the lodestar method was mentioned at tria l was during the cross-examination of Howard when Rohrmoos’s at torney asked Howard if he knew what the lodestar method was. On re-direct, Howard also expl ained why the fees were not necessarily ti ed to his hourly rate.–15– conclude that the absence of billing records does not render the evidence insufficient to support the fee award. (c). Arthur Andersen Factors. We also reject Rohrmoos’s argument that th e fees are not recoverable because Howard did not specifically testify about the Arthur Andersen factors. It is not accur ate to state that there was no testimony as to any of these factors. C ourts are not required to receive evidence on each factor before awarding attorney’s fees. Sandles v. Howerton , 163 S.W.3d 829, 838 (Tex. App.— Dallas 2005, no pet.); Brockie v. Webb , 244 S.W.3d 905, 909–10 (Tex. App.—Dallas 2008, pet. denied). Here, Howard testified about the factors relevant to this case. Howard’s testimony concerning his experience, the total amount of f ees, and the reasonableness of the fees charged was sufficient to support the award. See Woodhaven Partners, Ltd. v. Shamoun & Norman, LLP , 422 S.W.3d 821, 846 (Tex. App.—Dallas 2014, no pet.). 4. Sufficiency of the A ppellate Fees Evidence It is well-settled that, where attorney’s f ees are recoverable, the award may include appellate attorney’s fees. Cessna Aircraft Co. v. Aircraft Network, LLC , 345 S.W.3d 139, 147– 49 (Tex. App.—Dallas 2011, no pet.). Rohrmoos sa ys there is no evidence to support the award of appellate attorney’s fees to UT because Howa rd offered no testimony on this aspect of the fee award. UT responds that Rohrmoos’s counsel o ffered generic testimony about appellate fees, and this evidence is suffici ent to suppor t the award. Charles Bundren, Rohrmoos’s counsel testified as follows: Q. Are you familiar with the reasonable and customary fees in Dallas County for appellate work in commercial litigation cases? A. I am. Q. Do you have an opinion on what would be necessary fees for an appeal of this case to the Dallas County Court of Appeals?–16– A. If necessary? Q. How much? A. $150,000. Q. Do you have an opinion on how mu ch would be considered necessary attorney’s fees for an appeal to Texas Supreme Court, if necessary? A. $75,000. In addition to Bundren, Rohrmoos also calle d Alvin Badger to testify about fees. Badger testified that “reasonable ap pellate fees” for an appeal of th e case to the court of appeals would be $150,000 and a “reasonable fee in a case of this nature for an appeal to the Texas Supreme Court” would be $75,000. Neither Badger nor Bundren limited their te stimony to what only Rohrmoos might incur on appeal. Instead, both testified genera lly about reasonable fees on appeal. Thereafter, the jury awarded bot h parties the exact amount of a ppellate fees identified by these witnesses. We thus conclude there is some evidence to support the award of appellate attorney’s fees and we decide R ohrmoos’s sixth issue against it. F. Rohrmoos’s Eighth Issue: Did the trial court erroneously refuse to grant judgment for Rohrmoos? Because we conclude the trial court did not err in granting judgment for UT, do not reach Rohrmoos’s remaining issue. See T EX
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. P. 47.1. III. Conclusion Having resolved all of Rohrmoos’s issues agai nst it, we affirm the trial court’s judgment.

140774F.P05 /Bill Whitehill/ BILL WHITEHILL JUSTICE–17– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ROHRMOOS VENTURE, ERIC LANGFORD, DAN BASSO AND TOBIN GROVE, Appellants No. 05-14-00774-CV V. UTSW DVA HEALTHCARE, LLP, Appellee On Appeal from the 192nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-10-15959. Opinion delivered by Justice Whitehill. Justices Francis and Lang-Miers participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee UTSW DVA HEALTH CARE, LLP recover its costs of this appeal from appellant ROHRMOOS VENTURE, ERIC LANGFORD, DAN BASSO AND TOBIN GROVE.
Judgment entered August 3, 2015.