### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00434- CV

Wichita County, Texas, App ellant

v. Envi ronm ental Engin eer ing & Ge otec hni cs, Inc., Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -GN-1 8-0 0188 4, H ONO RAB LE DUSTIN M . H OW ELL, JUDGE P RESIDING

C O N C U R R

I N GA N D D I S S E N T I N G O P I N I O N

This appea l conce rns a n onparty ’s rec overy of “re asonable costs of production” as reimbursement for document production. See generally Tex. R. Civ. P. 205.3 (pro v i d i n g fo r production of docume nts from nonparties) ; see also id. R. 205.3( f) (“A party requiring production of documents by a nonparty must reimburse the nonparty ’s rea sonable costs of production.”)

. I n the underlying lawsuit, Wichita County sued Southwest Convenience Stores, L L C (SCS) for alleg ed contamination of g roundwa ter that occur red from 1996 throug h 2016 from SCS ’s storag e tanks located at a site in Wichita County

. SCS had employ ed Environmental Eng ineer ing & Geotec hnics,
I nc. (EEG) , a nonparty to the underly ing lawsuit, as its environmenta l consulting fi rm from 1997 throug h 2016. On April 25, 2018, the County serve d a subpoena reques t i n g production of EEG’s documents rela

ted to the site. EEG produce d over 10,000 scanne d pag es of documents and
reque sted reimburse ment. After a hear ing, the trial court awa rded $11,283.89 as “re asonable costs.”I n two issues, the County argues fi rs t t h at the trial court err oneously ref used its
reque st to conduct discovery as t o t h e re as o nablene ss of EEG’s costs and second that insufficient evidenc e supports the amount of the awa rd. The opinion of the Court holds: (1) the County did not
prese rve err or to conduct discov e r y , (2) sufficie nt evidenc e supports the rea sonablene ss of $3,711.39 in costs for scanning documents, (3) EEG was not entitled to rec over $92.50 in costs for a half hour of time billed befor e the subpoena’ s date of service , and (4) fac tually insufficient evidenc e supported the reasonablene ss of t he $7,480 billed in costs for the work of t hree EEG ex ecutives. The Court there fore aff

irms as to the first two holdings, reve rses and rende rs as to the third, and r ever ses and

rema nds as to the fourth. I

join in the first two holdings. I respe ctfully dissent, how ever , from the latter two holding s for two funda mental re asons. First, it is my opinion that the Court should n o t gra n t a rema nd reme dy when the County did not reque st it in its briefing and expressly disavowed the reme dy at oral argument. See Tex. R. App. P. 38.1(

j) (“The brief must c ontain a short conclusion that clea rly states the nature of the relief soug ht.”); Texas Parks & W ildlif e Dep’ t v. Sawyer Tr. , 354 S.W .3d 384, 392 (Tex. 2011) (“G ener ally , a party is not entitled to relief it does not reque st.” (citing State v. Brown , 262 S.W .3d 365, 370 (Tex. 2008)))

. When asked at oral ar gu m en t , t he County ’s counsel stated that “[t] hose specific s are challeng es to the leg al sufficie ncy , there is just no evidenc e about why they should g et
costs from April 20th throug h 25th or past M ay 7th,” and “if they have not prese nted sufficie nt evidenc e, leg ally sufficie nt ev i d ence to support their awa rd, then it’s a rende r”; thus, counsel

asser ted, on “that point of err or, it’s all or nothing.” Acc ording ly , I would not fashio n a re m and

reme dy that the County

did not request.

2Second, as a matter of first impression, I disag ree with the Court’s opinion as to the

standard of revie w. Iwould conclude that an abuse of discre tion standard of r eview applies to the trial court’s deter

mination of what constitutes a “re asonable amount” for costs of production, even when reimburse ment is mandatory under rule 205.3(f)

. See Tex. R. Civ. P. 205.3(f)

. EEG’s entitlement to re imbursement i s not under review—it is undisputed. Thus, “[a]lt houg h the award of reasonable attorney ’s fees and costs of court is mandated by statute”—or, a s here , the awa rd of

rea sonable costs of production is mandated by rule—“ the trial court still has discretion to deter mine the amount in light of the evidenc e p re s en t ed.” Bain v. Capital Senior Living Corp. , No. 05-14-00255- CV, 2015 WL 3958714, at *4 n.3 (Tex. App.—Dallas J une 30, 2015, pet. denied) (mem. op.). Additionally , two analog ous conte x ts wher e reimburse ment is mandatory support
ap p l y i n g an ab u se of discretion standard of revie w here

. First, in the context of an awa rd o f

rea sonable attorney ’s fee s require d under section 27.009 of the Texas Civil Practice and Remedies Code, the Texas Supreme Court has explained that a “re asonable ” attorney ’s fee awa rd is “‘one that is not excessive or extreme, but rathe r modera te or fair’ ” and “[t] hat deter mination rests wi thin the court’s sound discretion.” Sullivan v. Abraham , 488 S.W .3d 294, 299 (Tex. 2016) (q u o t i n g Gar cia v. Gomez , 319 S.W .3d 638, 642 (Tex. 2010)); see Hawxhurst v. Austin’s Boat Tours , 550 S.W .3d 220, 232 (Tex. App.—Austin 2018, no pet.) (holding that deter mination of “re asonable attorney ’s fee s” “re sts within the trial court’s discretion” and “dec lin[ ing] to instruct the trial court to aw ard the amount of attorney ’s fe es and c osts Hawxhurst requested a nd rema nd[i ng ] to the trial court to de termine within its discretion the amount of the rea sonable attorney ’s fee s . . .

3that must be awa rded under section 27.009”). Second, an abuse of discretion standard of revie w also
g overns the trial court’s deter mination of rea sonable attorney ’s fee s for an attorney ad litem that are mandated under rule 244. See Tex. R. Civ. P. 244 (“The court shall allow such attorney [ad litem]

a rea sonable fee for his service s, to be taxed as part of the costs.”); see also Atlantic Shippers of Tex., Inc. v. Jefferson County , 363 S.W .3d 276, 286 (Tex. App.—B eaumont 2012, no pet.) (“I n revie wing the fee awa

rded to the attorney ad litem, the standard of revie w require s that we allow the trial court
to e x erc ise discretion in a war ding f ees, a nd a re viewing court will not overturn a fee awa rd absent evidenc e showing a clea r abuse of discretion.”) ; Garza v. Sla u g h t er , 3 31 S.W .3d 43, 45 (Tex. App.—Houston [14th Dis t.] 2010, no pet.) (“The amount of compensa tion a war ded to an attorne y ad li tem lies within the s ound discretion of the t rial court, and a revie wing court will not overturn

a fee awa

rd absent evidenc e showing a clea r abuse of discretion.”)

. The p ri n cipl e that the deter mination of the amount of re asonable attorney ’s fees i s in the t rial court’s discretion also ha s been repe atedly rea ffirme d by this Court and o u r s i s t er courts. See, e.g. , Ruder v. Jordan , No. 05-16-00742- CV, 2018 WL 672091, at *3 (Tex. App.—Dallas Fe b. 2, 2018, no pet.) (mem. op.) (“F ix ing a rea sonable attorney ’s fee is a matter within the sound discretion of the trial court, and its judgme nt will not be reve rsed on appea l absent a clea r ab u s e of discretion.”) ; Highland Pines Nursing & Rehab. v. W

iley , 496 S.W .3d 804, 812 (Tex. App.—Texarkana 2016, no pet.) (noting that “trial court has discretion to deter mine the amount of the awa rd” of rea sonable attorney fee s and
court costs); Kleas v. BMC W

. Corp. , No. 03-05-00190- CV, 2008 WL 5264883, at *3 (Tex

. App.—Austin Dec

. 19, 2008, pet. denied) (mem. op.) (“The amount of a fee awa rd rests in the sound discretion of the trial cour t , an d its judgme nt will not be reve rsed on appea l absent a clea r

4abuse of discretion.”) ; C u mb erl and Cas. & Sur. Co. v. Nkwazi, L.L.C

. , No. 03-02-00270- CV,

2003 WL 21354608, at *5 (Tex. App.—Austin J une 12, 2003, no pet.) (mem. op.) (“The amount of attorney ’s fee s to be awa

rded is a question of fac t and must be supported by cre dible evidenc e; this
amount rests in the sound discre tion of the trial cour t and its finding s will not be disturbed, absent an abuse of discre tion.”).

F r o m th e s e tw o analog ous contexts and the authorities apply ing an abuse of d is c r e ti o n standard of revie w to the deter mination of the amount of a rea sonable attorney ’s fee awa rd, I would conclude that a trial court’s determination of the amount for reasona ble costs of production under rule 205.3(f) should have the same abuse of discretion standard of revie w. Simi lar to attorney ’s fee

awa rds, the trial court’s discretion lies in the deter mination of what constitutes a rea sonable amount, see Sulli van , 488 S.W .3d at 299, reg ardle ss of whether the party ’s entit lement i s m an d at ed or left
to the discretion of the trial court. Additionally , “bec ause the issue of attorney ’s fee s was submitt ed
to the trial court,” in contra st to a jury , the trial court could rely on, among other things, “the

common knowledg e of the participants as . . . judg es” in e x erc ising its discretion to deter mine the

rea sonablene ss of the fee s. See Truck Ins. Exc h. v. Mid-Continent Cas. Co. , 320 S.W .3d 613, 623 (Tex. App.—Austin 2010, no pet.) (citing In re A.B.P. , 291 S.W .3d 91, 98 (Tex. App.—Dallas 2009,

no pet.)); see also Bocque t v. Herring , 972 S.W .2d 19, 22 (Tex. 1998) (B aker , J ., dissenting) (“Tr ial judge s, as well as appellate judge s, can draw on their common knowledg e and experience as lawy ers and as judge s in considering the testimony , the rec ord, and the amount in controve rsy in deter mining attorney s’ fee s.”); Smith v. Texas Co. , 53 S.W .2d 774, 779 (Tex. Comm’n App. 19 3 2 , holding
approve d) (“I t is true it has been held that a trial judge may det er mine an issue of fac t as to what

5constitutes a rea son able attorney fee for service s rende red in a trial befor e him, from his own

knowledg e of the nature and value of t he services for which compensa tion is claimed.” ). I would conclude the same principle applies t o cost s of document production, a ubiquitous component of litigation, u n d er rul e 205.3(f)

. Her e, the trial court exercised that discretion to deter mine that 1 $11,283.89 constituted “re asonable costs of production” under rule 205.3(f) , and I would conclude that the trial cour

t did not abuse its discretion in so doing. “A tr i al court abuses its discretion if its decision is arbitra ry , unrea sonable, and without ref

ere nce to g uiding principles.” In re Pirelli Tire, L.L.C

. , 247 S.W .3d 670, 676 (Tex. 2007) (ori g. p ro ce eding) (quoting Goode v. Shoukfeh , 943 S.W .2d 441, 446 (Tex. 1997)). When the
appropr iate standa

rd of r eview is a

buse of discr etion, leg al and f actua l sufficienc y

of t he evide nce

are rele vant fac tors i n as s essi ng whether the trial court abused its discretion, but they are not

As its lea d analog ical authority for applying a sufficie ncy standard of revie w, ra ther than 1 an abuse of discretion standard to a trial court’s deter mination of rea sonable costs of production, the Court relies on CS Custom Homes, LLC v. Stafford , No. 03-13-00315- CV, 2015 WL 5684080 (Tex. App.—Austin Sept. 23, 2015, no pet.) (mem. op.). See ante at ___. But CS Custom Homes involved marke dly differ ent circ umstances than here

. The billed costs in CS Custom Homes conce rned home repa ir service s requiring expert testimony , n o t a l i tigation focuse d task like document production wi th which a trial court would be familiar. 2015 WL 5684080, at *4 (“[C] onsidering that the s er v i ce s and char g es in question here are those of a structura l eng ineer , a profe ssion requi ri n g specia liz ed, technica l know ledg e, the aid of expert testimony would be nece ssary to e nable the lay jury to draw rea sonable infere nces reg ar ding the rea sonablene ss of the service s provided, not to mention their nece ssity .”). Acc ording ly , a trial court would not have th e re l evant “common knowledg e” to exercise its discretion in deter mining the rea sonable fee s nece ssary to perf orm home repa irs. See Truck Ins. Exc h. v. Mid-Continent Cas. Co. , 320 S.W .3d 613, 623 (Tex. App.—Austin 2010, no pet.) (c i ting In re A.B.P. , 291 S.W .3d 91, 98 (Tex. App.—Dallas 2009, no pet.)). Moreove r, CS Custom Ho me s d i d not even involve a trial court’s deter mination, but rathe r a jury finding

. 2015 WL 5684080, at *4. As alre ady noted above, althoug h a trial ju d ge h as “c o m m on knowledg e” of costs rela ted to litigation focuse d tasks—and I would conclude this includes costs for document produc tion—a lay jury would not. See Truck

Ins. Exc h. , 320 S.W .3d at 623. 6independe nt g rounds of err or. See Beaumont Bank, N.A. v. Buller , 806 S.W .2d 223, 226 (Tex. 1991)

(holding whether there was no evidenc e to support turnover awa rd would be rele vant consideration in determining if trial cour t abused its discretion, but “no e vidence ” g round i s not proper sta ndard for reve rsal); Ruder , 2018 WL 672091, at *3; Iliff v. Iliff , 339 S.W .3d 126, 134 (Tex. App.—Austin 2009), aff’d , 339 S.W .3d 74 (Tex. 2011); Spector Gadon & Rosen, P

. C

. v. S o u t h west Sec., Inc. , 372 S.W .3d 244, 251 (Tex. App.—Dallas 2012, no pet.) (apply ing standard to “the fix ing of a

rea sonable attorney ’s fee ”); Lesikar v. Moon , 237 S.W .3d 361, 375 (Tex. App.—Houst on [14t h Dist.] 2007, pet. denied) ; Zeifman v. Miche ls , 212 S.W .3d 582, 587 (Tex. App.—Austin 2006, pet. denied) ; see also IKB Indus. ( Nigeria) Ltd. v. P r o -L i n e Corp. , 938 S.W .2d 440, 445 (Tex. 1997) (B aker , J ., dissenting) (“U nder an abuse of discretion standard of revie w, l eg al and fac tual sufficie ncy claims are n o t i n d ependent, reve rsible g rounds of err or, but rathe r mere ly fac tors to consider in assessing whether the trial court abused its discretion.”) ; Landon v. Jean-Paul Budinger,
In c. , 7 2 4 S.W .2d 931, 935–37 (Tex. App.—Austin 1987, no writ) (describing abuse of discretion

s t an d ar d and noting one fac tor to deter mine whether trial court abused its discretion is whether
ap p ell ate rec ord reve als sufficie nt fac ts upon which trial court could act rationally in exercisi n g its discretion). “Onc e it has been deter mined that the appropr iate standard is abuse of discretion, an appellate court eng ag es in a two-prong ed inquiry : (1) whether t h e t ri al court had sufficie nt information on which to exercise its discretion; and (2) whether the trial court err ed in its application of discretion.” Zeifman , 212 S.W .3d at 588; see In re Estate of Vrana , 335 S.W .3d 322, 329 (Tex. App.

— S an An t onio 2010, pet. denied) ; Travelers Indem

. Co. of Conn. v. Espinosa ,

7No. 01-05-00836- CV, 2007 WL 1559936, at *2 (Tex. App.—Houston [1st Dist.] May 31, 2007, no

pet.) (mem. op.); Gonzalez v. Tippit , 167 S.W .3d 536, 544 (Tex. App.—Austin 2005, no pet.). I n this hy brid revie w, the sufficie ncy revie w comes into play with r eg ard to the first question; but the revie wing court mus t al s o proce ed to deter mine whether , based on the elicited evidenc e, the trial
court made a rea sonable decision—that is, that the court’s decision was neither arbitra ry nor

unrea sonable. Vrana , 335 S.W .3d at 329; Zeifman , 212 S.W .3d at 588; see also City of Keller v. W ilson , 168 S.W .3d 802, 810 (Tex. 2005) (desc ribing sufficie ncy standard of

revie w).

DISCUSSIO N The Evid ence I beg in by revie wing the evidenc e to determ i n e “if the trial court had sufficie nt information on which to exer ci s e i t s d i s cre tion.” Zeifman , 212 S.W .3d at 588. At the hear ing, EEG’s chief opera

ting office r Mark Owens introduced into evidenc e the invoice that was submitt ed to the County . The invoice listed the following r eleva nt information:

• the three EEG employ ees that worke d on the document production: Owen s , EEG’s executive vice president Br uce Br i t t en , and EEG’s president and chief executive office r Kimberly Millette;

• the quantity

of hours wor

ked: 22.5, 11, and 5, r espec tively ;

• the billing rate: $185, $185, and $275, re spectively ;

• the same billing block time period for eac h employ ee: 4/20/18 - 5/23/18; and

• the total amount billed for ea ch employ ee: $4,162.50; $2,035; and $1,375, r espec tively

.

8The sum total of the amounts billed for the EEG employ ees equals $7,572.50. Owens’ s testimony

was the only testimonial evidenc e prese nted; the County did not submit any controve rting evidenc e. Owens te stified as to the time billed, the work r equire d and per formed, a nd the ra te billed. As to the time billed, Owens testified that the invoice time of “4/20/18 - 5/2 3 / 1 8 ” used for all t h re e em p l o y ee s was “a bl ock of time we used from when I started to when I stopped working ,” “[s] o that was kind of the block we used for ever y body ,” and that for “a projec t like this” they would not enter daily time rec ords. He testified that the 22.5 hours listed on the invoice as his billed time are “the actua l hours that [he] put in on -- s ea rc h i n g for rec ords reque sted by the subpoena,” althoug h the total time listed “may be a littl e low.” In re s p o n s e to the question of whether he could verify to the trial court that “[Britten] had at least 11 hours of his time in this” and “[Mill ette] had at lea st five hours of he r time in this,” Owens said, “ Yes.”

Owens also testified that althoug h he wa s s er ved with the subpoena on April 25, 2018, he be g an wor k on April 20, 2018. He rec eived a call from SCS ’s par ent company
reg arding whether he had any “information on a particula r site” wher e EEG had been involved from 1997 until 2016. Owens testified that he “initiated some initial looking into the files at that point” beca use he w as unsure whether he had the i nformation bec ause it “w as two y ear s old” and that he spent “[p] robably half an hour” of time “fr om April 20th to April 25th.” He testified that Br itten did
not bill time until “[p] robably the 25th” and that Millet e d i d n o t start billing time on April 20th. Additionally , Owens also testified that “not a lot” of time was incurre d by him, Br itten, or Millette afte r dropping the box es of documents off at Offic e Depot to g et copied on May 7, 2018—only that “we ’d g o throug h them when they came back.”

9Reg arding the work require d, Owens testified that the subpo en a “l o oked pretty

daunting to us, as far as try ing to ge t all that information, knowing t hat t he si te was 20 y ear s ag o” and that many documents “pre dated all our -- most of our elec tronic communication that we had at that time.” He testified that “it took a lot of di g g ing, a l ot of l ooking, a l ot of file-pulling, a lot of
g oing in plac es whe re nobody would think to look,” “whether it was storag e units or attic storag e, things like that.” The place s they had to look included “two storag e operati o n s and a larg e attic
space ” and “other i nteroff ice space s.” He also testified that there wer e sever al hundred box es in those locations that wer e partially labeled, with no indexe s , and that it “wa s a pretty exhaustive

sear ch.” U ltimately , EEG sca nned over 10,000 pag es of doc uments for produc tion. Owens also addre ssed why th e E E G executive l evel employ ees had to perf orm the work. First, Owens testified that he was “the only one in the company that expands the whole leng th of time that this was a projec t for the company ,” “B ritten manag ed this projec t from 2011 to closure” but was involved “[f]rom 2007 on,” and Millet te was in char g e of “all the overa ll acc ounting fu n ct i o n s an d invoicing” with “a lot” of invoicing “done with the State of Texas during the fund
proce ss.” Second, Owens testified that they “kind of split up the duties”: he focuse d on “stuff that predated” Br itten, Br itten “pre dominantly did t h e s t uff he was in char g e of from 2007 until the closure,” and Millette “ was in cha rg e of g etting the invoices” a nd “sea rche d for a ll the acc ounting

rec ords that would be pe rtinent to this project.”

Finally , as t o the bi lling rates, Owen s t es t i fi ed t hat hi s $185 rate is “a reduc ed rate from my principal rate” of

$275 an hour and that Br itten’s profe ssional rate is the same as his and
was not billed as a principal ei t h er . As t o Millette’s billing rate, he testi fied that as president and

10CEO her r ate wa s $275 an hour a nd that “[w]hen she bills, t houg h, she’s the le ad of the company , the fa ce of

the company

” eve n though “ a lot of her work is administration.”

The Trial Court’s Det erm ination

Wit h this evidenc e in mind and viewing i t “i n the light most favor able to the judgme nt,” Burbage v. Burbage , 447 S.W .3d 249, 259 (Tex. 2014), I t u rn to the first inquiry of wh ether “the trial court had sufficie nt information on which to exercise its discretion,” Zeifman , 212 S.W .3d at 588. The trial court had befor e it uncontrove rted evidenc e as to the total time billed b y eac h EEG employ ee, at what rate , and during what time period. The trial court also h ea rd evidenc e as to the tasks done by the billing employ ees, wher e the employ ees looked for documents, the difficulties associate d with producing the documents that cover ed almost a 20 y ear time period, and why the billing rate s wer e justified. On the rec ord befor e us, I would conclude that the trial court had suff icient information to deter mine the re asonable ness of the c osts of production. Although not fra

med in this manner , the Court’s op i nion appea rs to focus on the second prong of the inq u i ry , d i s ag ree ing with the trial court’s “application of discretion,” not

nece ssarily with the information available

. See Zeifman , 212 S.W .3d at 5 8 8

. Fo r example, the opinion decla

res that “the starting point for deter mining EEG’s ‘re asonable costs of production’ in
response to the County ’s subpoena under Rule 205.3 is no ear lier than April 25, 2018, the undisputed date of service of the subpoena,” and that “a rea sonable fac tfinder could not disreg ard that there was

no ev i d en ce showing that EEG incurre d any costs befor e April 25, 2018, due to the County ‘re quiring production of documents’ from EEG by subpoena.” Ante at ___. This appea rs to be not

a n evidentiar

y argument that the costs are unrea sonable, but a leg al arg ument that costs incurre d prior
11to the subpoena are not “costs of production” and there fore no evidenc e can support rea sonable costs

of produc tion incurred pr ior to the subpoena.

Rule 205.3(f) states that “[a] party requiring production of documents by a nonparty
must reimburse the nonparty ’s rea sonable costs of production.” Tex. R. Civ. P. 205.3(f)

. The clause “re quiring production of documents” is modifying the party that is require d to reimburse the nonparty , not imposing a require ment on what constitutes “r easona ble costs of produc tion.” Rule 205.3(f) does not require that “costs of production” must be costs incurre d only afte r a subpoena was

serve d; rathe r, it require s only that they be “re asonable costs of production.” See id. The lang uag e of rule 205.3(f) provides for only two inquiries in deter mining the amount to be reimburse d: whether the nonpar

ty ’s costs ar e costs of pr oduction and whe ther the c osts are r easona ble.
Her e, for example, the subpoena reque sted EEG’ s “e n t i re files, all rec ords

. . . [c] oncer n i n g t h e S ite.” Owens testified that he started his “initial looking into the files” on Ap ri l 2 0 th in response to a phone call from SCS ’s pare nt company “re g arding if [he] had any information on a particular sit e.” H e also testified that the 22.5 hours l isted on the i nvoice for hi s billed time was for “ac tual hours” “sea rching for rec ords reque sted by the subpoena.” Spending half

an hour looking i n t o the files to deter mine whether EEG had information on the site at issue

rea sonably could be a “cost[] of production” responsive to a reque st for “all rec ords

. . . [c] oncer ning the Site” and would there fore constitute “sea rching for rec ords reque sted by the subpoena , ”
reg ardle ss of whether or not the initiating event that t ri gg ere d Owens’ s action was the actua l subpoena. What is signific ant is not whether the subpoena motivated EEG to incu r costs of production, but whether EEG’s costs are objectively attributable to its production of documents and

12whether those costs are rea sonable. I there fore disag ree with the Court’s opinion in this reg ard and

would conclude that the trial court did not abuse its discretion by impliedly concluding that the half

an hour incurre d prior to April 25, 2018, for an “initial looking into the files” of the site at issue was a “r easona

ble cost[] of produc tion.” 2 Additionally , the C ourt conclude s that the bi lling ti me from May 7 to M ay 2 3 wa s “improper [] ” beca

use “[ n ] othing in the rec ord ref lects that Owens was ‘sea rching ’ for rec ords
reque sted by the County afte r May 7, 2018, at 11 : 2 0 a. m., when his wife retrie ved the last set of responsive documents from Offic e Depot for copying and scanning and EEG paid the ‘final bill.’” Ante at ___. But Owens testified that he, Br itten, and Millette i n cu rr ed “n o t a lot” of time afte r May 7 and that “[w]e alre ady dropped the box es off at Offic e Depot, so we’ d g o throug h them when they came back.” He a lso testified that he is “g oing to be the one that ha s to say that we found all

our documents and prese nted them all.” Thus, it is a rea sonable infere nce that the “not a lot” of time spent afte r May

7 g oing thr oug h box es would be f or the purpose of confirming that all the re cords that wer e to be produce d wer e included in the box es. See City of Keller , 168 S.W .3d at 822 (noting that revie wing court “must consider evidenc e in the light most favor able to the verdic t, and indulge

ever y rea sonable infe renc e that would support it”).

I do not imply

here that the trial cour

t would have a

bused its discretion had it conclude d 2 that the half hour incurre d prior to April 25, 2018, did not constitute rea sonable costs of production. But wit h o u t substitut ing my judgme nt for the trial court’s, I cannot conclude that the trial court abused its discretion in det er m i n i ng that this half hour incurre d constituted a rea sonable cost of production. S

ee In re Shipman , 540 S.W .3d 562, 565 (Tex. 2018) (orig

. proce eding ) (“A ppellate courts may not substitut e their judgme nt for the trial court’s dete rm ination of fac tual matters committed to the trial court’s discr etion.”) 13I n its role as the fac t fi n d er , the trial court had discretion to cre dit Owens’ s

uncontrove rted testim ony , and a re v i ew ing court shoul d not usurp t hat role and subst itute its own opinion to the con t ra ry . S ee In re Shipman , 540 S.W .3d 562, 565 (Tex. 2018) (orig

. proce eding ) (“A ppellate courts may not substitut e their judgme nt for the trial court’s deter mination of fac tual
matters committed to the trial court’s discretion.”) ; Smith v. Patrick W .Y

. Tam Tr. , 296 S.W .3d 545, 547 (Tex. 2009) (“The rea sonablene ss of attorney ’s fe es i s ordinarily left to the fac tfinder, and a revie wing court may

not substit ute its judgment for the [factfinde r].”); City of Keller , 168 S.W .3d
at 822. I would conclude that the trial court did not err in applying its discr etion to c redit Owens’ s testimony and deter

mine that the costs of production wer e rea sonable—its decisi on was neither arbitra ry nor unrea sonable. Having conclude d that the trial court satisfied both prong s of the hy brid 3 abuse of discretion standa

rd of r eview, I

would overr

ule the County ’s sec ond issue.

CONCLUSION For these rea sons, I join the Court’s opinion as to aff irming the trial court’s order in part, but re spectfully

dissent as to reve rsing in part and w ould instead aff irm in full.

Although block billing may not have been the best prac tice for EEG, I cannot conclude that 3 the t ri al court abused its discretion in deter mining the rea sonable amount of costs of production based on the block billing and Owens’ s testimony at the hear ing. The nonparty EEG did not perf orm multipl e and vary

ing tasks ty

pical of parties in g ener al litigation that would re quire itemization of t h e t asks perf

ormed for meaning ful evaluation, but instead perf ormed the single limit ed task o f document production responsive to a subpoena and identified the amount of hours require d for eac h employ ee to perf

orm that task during the rele vant time period. Additionally , Owens testified at the hear ing as to that limit ed task, further specify ing what was involved in the document production and what ea ch EEG e mploy ee did. 14__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Goodwin, B aker , and Tria na Filed: May

31, 2019

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