Affirmed in part, Reversed and Remanded in part, and Opinion filed March 5, 

2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00165-CV

JINSUN, LLC, Appellant

V.

ALIDAD MIRESKANDARI, Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1181704

O P I N I O N

In this dispute regarding a settlement agreement, appellant Jinsun, LLC 

appeals from a final summary judgment and order awarding attorney’s fees in 

appellee Alidad Mireskandari’s favor. In three issues, Jinsun contends the trial court 

erred in granting Mireskandari’s summary-judgment motion, denying Jinsun’s 

summary-judgment motion, and awarding Mireskandari attorney’s fees. 
2

Because Jinsun has not challenged all grounds asserted in Mireskandari’s 

summary-judgment motion, we overrule Jinsun’s first two issues. We affirm the 

trial court’s final declaratory judgment in Mireskandari’s favor. 

However, we sustain Jinsun’s challenge to the award of conditional appellate 

attorney’s fees, raised in its third issue, because Mireskandari provided insufficient

evidence in support of this award. Accordingly, we reverse the award of conditional 

appellate attorney’s fees, and we remand the case for reconsideration limited to that 

issue only.

Background

In 2016, Jinsun obtained a judgment and order in the United States District 

Court for the Southern District of Texas against Mireskandari for $377,948, plus 

interest. Before paying any amounts owed and while a motion for sanctions and 

attorney’s fees was pending in the district court regarding Mireskandari’s failure to 

pay the judgment, Mireskandari filed for bankruptcy in November 2018. In October 

2019, Jinsun and Mireskandari signed a settlement agreement regarding the 

judgment, under which Mireskandari agreed to pay Jinsun “(a) $300,000 plus (b) the 

amount, if any, awarded by the Southern District of Texas in respect of [Jinsun’s] 

Sanctions Application[

1

] through a final order after exhaustion of any applicable 

rights of appeal (the ‘Settlement Amount’).” Mireskandari was to pay the Settlement 

Amount according to the following schedule:

i. [Mireskandari] shall pay $100,000 within 60 days after the 

Effective Date[

2

] (the “Initial Payment Date”);

1 The parties refer to Jinsun’s motion for sanctions and attorney’s fees as the “Sanctions 

Application,” so we do as well.

2 The “Effective Date” was the date the bankruptcy court entered an order approving the 

settlement agreement, which was on December 11, 2019. Thus, Mireskandari’s first payment was 

due February 9, 2020.
3

ii. [Mireskandari] shall pay $25,000 within 30 days after the Initial 

Payment Date; and

iii. [Mireskandari] shall pay [the] remaining balance of the 

Settlement Amount in twenty-four (24) monthly installments 

following the Initial Payment Date, provided that any attorneys’

fees awarded in the Sanctions Application through a final order 

after exhaustion of any applicable rights of appeal in excess of 

$40,000.00 will be paid in twelve equal monthly installments 

beginning twenty-four (24) months after the Initial Payment 

Date. For clarification purposes, if $100,000.00 is awarded in 

the Sanctions Application, then $60,000.00 will be paid in twelve 

equal monthly installments beginning twenty-four (24) months 

after the Initial Payment Date. . . .

After the bankruptcy court approved the settlement agreement, the federal district 

court awarded Jinsun $73,824.91 in attorney’s fees to resolve Jinsun’s Sanctions 

Application on January 27, 2020. Mireskandari appealed the sanctions order.

Beginning in February 2020, and while his appeal of the sanctions order was 

pending, Mireskandari made payments pursuant to the schedule in the settlement 

agreement. The payments consisted of an initial payment of $100,000, another lump 

sum payment of $25,000, and twenty-four monthly payments of $7,291.67. As of

February 11, 2022—the approximate two-year anniversary of the initial payment—

Mireskandari had paid a total of $300,000. None of these payments included any 

portion of the $73,824.91 sanctions award that was on appeal. 

The United States Court of Appeals for the Fifth Circuit affirmed the sanctions

order on January 4, 2022. Then a dispute arose about how much of the Settlement 

Amount Mireskandari still owed. Mireskandari made no further payments, and the 

instant lawsuit followed.

Mireskandari was the first to file suit. He sought a declaration that he was not 

in violation of the settlement agreement and that he owed only $33,824.91—not 

$73,824.91. 
4

Jinsun filed a counterclaim, the live version of which seeks a declaration that 

Mireskandari breached the settlement agreement. According to Jinsun’s pleading, 

the settlement agreement provided that Mireskandari was to pay $340,000 ($300,000 

plus the first $40,000 of the sanctions award) over two years, and $33,824.91 in year 

three. Jinsun alleged that Mireskandari, having paid only $300,000 in the first two 

years, was in breach and thus owed the entire amount due under the original 

judgment, less the $300,000 already paid.

3

 

In response to Jinsun’s allegation that Mireskandari was required to pay 

$340,000 instead of $300,000 in the first two years, Mireskandari filed an amended 

pleading in which he asserted affirmative defenses of waiver, quasi-estoppel, usury, 

and unlawful penalty.

The parties filed competing motions for summary judgment. Mireskandari 

sought summary judgment on his affirmative declaratory judgment claim. He 

argued that he owed only an additional $33,824.91, based on his reading of the 

settlement agreement. According to him, only the amount of the sanctions award 

above $40,000 was required to be paid beginning in February 2022. Under his 

reading, he had no obligation to pay $40,000 of the sanctions award. Alternatively, 

he claimed he owed at most an additional $73,824.91. 

In his motion, Mireskandari also presented argument on a number of his 

affirmative defenses, including waiver. He argued that Jinsun had waived any 

entitlement to be paid $40,000 of the sanctions award during the first two years after 

the Initial Payment Date because Jinsun had accepted without objection two years’ 

worth of monthly payments that did not include any portion of the sanctions award. 

According to Mireskandari, it was impossible to include any part of the sanctions

3

Jinsun asserts that, as of the date Jinsun filed its appellate brief, the remaining balance 

owed under the original judgment was $151,772.83.
5

award portion of the Settlement Amount in the first two years of installment 

payments because the final amount of the sanctions, being on appeal, was not known 

and was subject to reduction or reversal. 

Jinsun filed its own summary-judgment motion on its competing declaratory 

judgment claim, asserting that Mireskandari breached the settlement agreement by 

failing to timely pay the settlement amount. Jinsun argued that Mireskandari was 

required to pay $340,000 over the first two years after the Initial Payment Date. 

Because Mireskandari paid only $300,000 over that period, and nothing afterward,

Jinsun argued that it was entitled to treat the settlement agreement as repudiated and 

recover under the original judgment and sanctions award. Jinsun also responded to 

Mireskandari’s arguments on his affirmative defenses.

The trial court granted Mireskandari’s motion, denied Jinsun’s motion, and 

signed a summary judgment in Mireskandari’s favor ordering that Jinsun take 

nothing on its counterclaim and declaring that Mireskandari owed Jinsun only 

$33,824.91 under the terms of the settlement agreement. The trial court’s order 

authorized Mireskandari to file an application for attorney’s fees pursuant to the 

Declaratory Judgment Act. The trial court signed a subsequent order awarding 

Mireskandari $60,742.50 in attorney’s fees (offset by the $33,824 the court had 

previously decreed he owed to Jinsun), as well as conditional appellate attorney’s 

fees. With the signing of the attorney fee order, the trial court disposed of all claims 

of all parties. Jinsun timely appealed.

Analysis

Jinsun contends the trial court erred in granting Mireskandari’s summaryjudgment motion, in denying its competing motion, and in awarding attorney’s fees 

to Mireskandari. We address Jinsun’s first two issues together.
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A. Summary Judgment in Mireskandari’s Favor

We do not reach the merits of Jinsun’s first two issues because it has not 

challenged all grounds presented in Mireskandari’s summary-judgment motion. The 

summary judgment in Mireskandari’s favor states that Mireskandari owes Jinsun 

$33,824.91, but it articulates no rationale for the ruling. When, as here, a summaryjudgment motion asserts multiple grounds and the order granting summary judgment 

does not specify the ground on which judgment was rendered, the appellant must 

challenge and negate all summary-judgment grounds on appeal. Collins v. D.R. 

Horton-Tex. Ltd., 574 S.W.3d 39, 44 (Tex. App.—Houston [14th Dist.] 2018, pet. 

denied); Heritage Gulf Coast Props., Ltd. v. Sandalwood Apartments, Inc., 416 

S.W.3d 642, 653 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see FM Props. 

Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000). If summary 

judgment may have been rendered, properly or improperly, on a ground not 

challenged on appeal, the judgment must be affirmed. Jackson v. Patten Law Firm, 

No. 14-19-00376-CV, 2020 WL 4098402, at *2 (Tex. App.—Houston [14th Dist.] 

July 21, 2020, no pet.) (mem. op); Collins, 574 S.W.3d at 44; see Lujan v. Navistar, 

Inc., No. 14-14-00345-CV, 2021 WL 56184, at *3 (Tex. App.—Houston [14th Dist.] 

Jan. 7, 2021, pet. denied) (mem. op.); Heritage Gulf Coast Props., 416 S.W.3d at

653. 

We focus on Mireskandari’s waiver argument. Waiver is an affirmative 

defense, which he pleaded. Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex. 

App.—Houston [14th Dist.] 2003, no pet.). A party who has raised an affirmative 

defense and moves for summary judgment on that basis bears the burden of proving 

each essential element of the defense. Nat’l City Bank of Indiana v. Ortiz, 401 

S.W.3d 867, 874 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); see Fed. 

Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 609 (Tex. 2012). In his summary-
7

judgment motion, Mireskandari argued that he owed Jinsun only $33,824.91 for 

multiple reasons. One reason was because Jinsun had waived its pleaded assertion 

that $40,000 of the sanctions award was supposed to have been paid along with the 

$300,000 payable within the first two years after the Initial Payment Date. 

In its opening appellate brief, Jinsun makes no mention of Mireskandari’s

waiver ground asserted in his summary-judgment motion. Jinsun argues only that 

the trial court interpreted the settlement agreement’s terms incorrectly. Even 

construing Jinsun’s brief liberally, we cannot conclude that it has challenged each 

ground on which the trial court may have granted Mireskandari’s summaryjudgment motion, whether properly or improperly. Thus, we must affirm the 

judgment. Collins, 574 S.W.3d at 44; Heritage Gulf Coast Props., 416 S.W.3d at

653-54 (affirming summary judgment when appellant failed to challenge waiver 

ground on appeal). 

Jinsun addresses Mireskandari’s affirmative defenses in its reply brief. We 

generally do not consider issues raised for the first time in a reply brief and decline 

to do so here. See Collins, 574 S.W.3d at 44; HMT Tank Serv. LLC v. Am. Tank & 

Vessel, Inc., 565 S.W.3d 799, 812 n.10 (Tex. App.—Houston [14th Dist.] 2018, pet. 

denied); Yeske v. Piazza Del Arte, Inc., 513 S.W.3d 652, 672 n.5 (Tex. App.—

Houston [14th Dist.] 2016, no pet.).

We overrule Jinsun’s first and second issues.

B. Attorney’s Fees

In Jinsun’s third issue, it contends the trial court erred in awarding attorney’s 

fees to Mireskandari. Because the fees were awarded apart from the summary 

judgment on his declaratory judgment claim, we address this issue separately.
8

The first half of Jinsun’s argument rests on its assertion that the declaration 

and grant of summary judgment in Mireskandari’s favor constitute reversible error. 

But because we have overruled Jinsun’s first two issues challenging the summary 

judgment, this portion of its argument does not provide a basis to reverse the 

attorney’s fee award. 

In another part of its issue, Jinsun argues that we should partially reverse the 

fee award because Mireskandari’s application for contingent appellate fees failed to 

set forth the anticipated work on appeal to support the amounts requested, failed to 

establish that the amounts were reasonable, and failed to provide any evidence that 

counsel was qualified to proffer such an opinion.

In support of the request for conditional appellate attorney’s fees, 

Mireskandari’s counsel filed a declaration, which stated in relevant part:

• “In the event that Defendant Jinsun, LLC appeals this matter to the 

Court of Appeals, Plaintiff Alidad Mireskandari will incur additional 

legal expenses in excess of $60,000.”

• “In the event that Defendant Jinsun, LLC appeals this matter to the 

Texas Supreme Court, I estimate that Plaintiff Alidad Mireskandari will 

incur additional legal expenses in excess of $40,000.”

• “In the event that the Texas Supreme Court requests full briefing, 

estimate that Plaintiff will incur additional legal expenses in excess of 

$40,000 and, if oral argument is requested, an additional $35,000.”

The trial court’s order granting Mireskandari conditional attorney’s fees on 

appeal ordered that Mireskandari would recover: (1) an additional $60,000 if he 

prevails in defending an appeal to the court of appeals; (2) an additional $40,000 if 

he should “prevail in defending an appeal to the Texas Supreme Court”; (3) an 

additional $40,000 if the supreme court requests full briefing; and (4) an additional 

$35,000 if “oral argument is requested.”
9

A trial court may award conditional appellate attorney’s fees to a party. These 

are “essentially an award of fees that have not yet been incurred and that the party is 

not entitled to recover unless and until the appeal is resolved in that party’s favor.” 

Ventling v. Johnson, 466 S.W.3d 143, 156 (Tex. 2015). Although the Supreme Court 

strongly favors the lodestar method for shifting attorney’s fees,4that method does 

not apply for conditional appellate attorney’s fees that have not yet been incurred 

and can only be projected based on an expert’s opinion testimony. Yowell v. Granite 

Operating Co., 620 S.W.3d 335, 355 (Tex. 2020). This is so because when a trial 

court awards such conditional appellate attorney’s fees, “any appeal is still 

hypothetical.” Id. “There is no certainty regarding who will represent the appellee 

in the appellate courts, what counsel’s hourly rate(s) will be, or what services will 

be necessary to ensure appropriate representation in light of the issues the appellant 

chooses to raise.” Id. Nonetheless, the party seeking conditional appellate 

attorney’s fees must support the fee request with expert testimony “about the 

services it reasonably believes will be necessary to defend the appeal and a 

reasonable hourly rate for those services.” Id.

Although Mireskandari’s counsel testified about the amount and 

reasonableness of attorney’s fees for work that had already been incurred, counsel

did not provide any statements regarding his opinion of a reasonable appellate fee to 

be charged or the required services necessary to defend an appeal. Counsel’s 

declaration contains no statement or testimony that the amount of legal “expenses” 

he estimates for each stage of appeal described are reasonable. The declaration does 

4

See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 496 (Tex. 

2019). The lodestar method requires the fact finder to derive reasonable attorney’s fees by first 

determining the reasonable hours spent by counsel in the case and the reasonable hourly rate for 

counsel’s work. See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012). The fact finder 

then multiplies the number of hours counsel worked on the case by the applicable rate, the product

of which is the base fee or lodestar. Id.
10

not distinguish between attorney’s fees and expenses, which are different. Nor does 

the declaration describe any relevant appellate experience by counsel that could form 

a basis for an assertion that the estimated amounts are reasonable for an appeal of 

this type of case. Accordingly, the evidence is insufficient to support the award of 

conditional appellate attorney’s fees. See id.; see also Davenport v. Davenport, 

No. 01-15-01031-CV, 2016 WL 7011406, at *8 (Tex. App.—Houston [1st Dist.] 

Dec. 1, 2016, no pet.) (mem. op.) (modifying judgment to delete portion granting 

conditional appellate attorney’s fees when there was no evidence to support them);

Assoun v. Gustafson, 493 S.W.3d 156, 168 (Tex. App.—Dallas 2016, pet. denied)

(testimony failed to include opinion of what a reasonable attorney’s fee would be for 

the services that would be necessary in the event of appeal; appellate fee award 

reversed).

We sustain in part Jinsun’s third issue. We remand the case to the trial court 

for further proceeding limited to redetermining reasonable and necessary attorney’s 

fees on appeal. See Tex. Civ. Prac. & Rem. Code § 37.009; Milliken v. Turoff, 

No. 14-19-00761-CV, 2021 WL 2156224, at *3 (Tex. App.—Houston [14th Dist.] 

May 27, 2021, no pet.) (mem. op.).

Conclusion

We affirm in part the trial court’s judgment declaring that Mireskandari owes 

Jinsun $33,824.91 and ordering that Jinsun take nothing on its counterclaim. 

However, we reverse in part the trial court’s order granting Mireskandari conditional 
11

appellate attorney’s fees, and we remand for further consideration of that issue 

consistent with this opinion. 

/s/ Kevin Jewell

Justice 

Panel consists of Chief Justice Christopher and Justices Wise and Jewell.