NUMBER 13-22-00416-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

SALINAS CONSTRUCTION

TECHNOLOGIES, LTD. AND

SALINAS AND SONS, INC., Appellants,

v.

CITY OF CORPUS CHRISTI, Appellee.

 

ON APPEAL FROM THE 117TH DISTRICT COURT

OF NUECES COUNTY, TEXAS

 

MEMORANDUM OPINION

Before Justices Benavides, Tijerina, and Silva

Memorandum Opinion by Justice Tijerina

Appellants Salinas Construction Technologies, Ltd. (SCT) and Salinas and Sons

Inc. (S&S) (collectively Salinas) appeal from the trial court’s judgment in favor of appellee 

the City of Corpus Christi. By four issues, which we reorganize, Salinas argues that: (1)

there is legally insufficient evidence that he materially breached the contract; (2) there is 
2

factually insufficient evidence to support the trial court’s finding that the City did not breach 

the contract; (3) there is legally insufficient evidence to support damages; and (4) there 

is legally insufficient evidence to support the award of attorney’s fees. We affirm.

I. BACKGROUND

SCT is engaged in the business of constructing streets and underground utilities, 

and S&S is a general partner of SCT. In 2014, Salinas entered a contract with the City for 

the construction of street, drainage, and utility improvements on Horne Road (the project). 

The City retained Naismith Engineering, Inc. (NEI) to serve as its consulting engineering 

firm for the project. Wilfredo Rivera, P.E., served as Project Engineer and approved, 

signed, and sealed the plans for the project. The contract was originally valued at 

$1,884,600.57.

The contract duration was for 180 days, provided for a substantial completion date

of April 20, 2015, and a final completion date of May 24, 2015. No time extensions would 

be allowed on the project. Salinas began performing on the contract on October 27, 2014.

Salinas requested two change orders, which were implemented, thereby extending the 

contract duration to 284 days. During this time, the City asserts that Salinas failed to 

account for rain days, protect the job site from surface water, drain standing water, make 

progress, and abide by the contract terms. The City terminated the contract on June 9, 

2015, after Salinas had used 225 of the allotted 285 days.

A. The Lawsuits

On June 7, 2017, Salinas filed suit against the City asserting “a claim under 42 

U.S.C. § 1983 for violation of [Salinas’s] substantive and procedural due process rights 
3

as protected by the Fourteenth Amendment of the United States Constitution.” The City

responded, and the case was removed to federal court. While the case was pending in 

federal court, the City filed a counterclaim in the trial court asserting breach of contract,

damages, and attorney’s fees. Following the federal court’s granting of summary 

judgment in the City’s favor, the federal court remanded the remaining state-law claims 

to state court. Salinas filed additional causes of action, including breach of contract,

prompt payment, and quantum meruit against the City. The trial court held a nine-day 

bench trial on the parties’ competing breach of contract claims.

B. Shoemaker’s Testimony

Jerry Joseph Shoemaker, a civil engineer working in a construction management 

firm, assisted the City in assessing the development of the project. He testified that in 

February 2015, he became actively involved in this project due to “the lack of production” 

as “very little work . . . had been performed.” Shoemaker inspected the project site almost 

daily and provided the City with inspection reports. According to Shoemaker, Salinas was 

somewhere between 11% to 20% complete in February when he “should have been much 

further along at that point in time.” Shoemaker was also concerned with public safety 

issues. The “general housekeeping at the project site was in bad shape” and “created a 

public safety issue for the traveling folks.” From November 2014 to February 2015, 

Salinas had completed about “$100,000 worth of work, plus [the] mobilization,[

1

]” but after 

that, Salinas “went the opposite direction” and was not “even hitting $20,000 in production 

1

“Mobilization is the cost to—for a contractor to set up, initiate their subcontracts, get their field 

trailer out, get the traffic devices and stuff that they need to execute the contract,” explained Shoemaker.
4

per month.” Shoemaker explained that, to stay on schedule, invoices needed to be hitting 

between $300,000 to $400,000 a month based on the $1.5 million still left on the contract. 

Instead, Shoemaker stated that the last three invoices submitted by Salinas fell 

substantially short: $6,452 in March, $13,358 in April, and $11,480 in May.

Shoemaker explained that several meetings occurred in March and April with 

Salinas and other City representatives. According to Shoemaker, he had multiple 

conversations with Salinas about increasing crew members so that they could start 

increasing productivity:

[T]he primary topic was increasing the productivity and work force that they 

had on the site, providing better housekeeping, getting the traffic controls 

properly placed, and alleviating the flooding that was occurring on the sides 

of the street, which forced people into the center of the roadway, and doing 

better maintenance on the existing roadway so that cars weren’t dodging 

potholes and becoming hazardous to the other vehicles coming in the 

opposite direction.

Specifically, Shoemaker instructed Salinas to increase production from $10,000 a month 

to $300,000—as is typical for all other City projects.

Shoemaker stated that when it rained, “Salinas would abandon the work site and 

just let it pond throughout the site, instead of trying to channel the water to some other 

storm water relief through a series of trenches or through the City’s underground storm 

water system,” which would “create huge problems for both their construction productivity 

and for the adjacent property owners.” Further, Salinas “didn’t have a regular 

superintendent that had been submitted by them and approved by the City. They had 

various players in there.” Shoemaker stated that the City was “trying to encourage 

[Salinas] in every way [it] could to help get . . . a properly developed schedule [so] that 
5

[Salinas] could execute and maintain through the project completion.” But it never 

appeared to him “from the work in the field and the pay estimates that [Salinas was] 

adhering to a schedule that was consistent with the City’s requirements.”

B. Rivera’s Testimony

Rivera testified that prior to construction, Salinas requested that the intended 

location of a new water line be moved, and the City agreed to Salinas’s requested change

despite Rivera’s opinion that no change was necessary. Salinas requested another 

change to the water line, and the City ultimately agreed to another change. Again, Rivera 

disagreed that this change was necessary. As a result of these changes, change order

number one was implemented, and the contract was extended by sixty-one days.

Regarding change order number two, Rivera recommended that the City grant 

Salinas an extension of forty-three days to account for rain delays. Although the contract 

did not provide for rain delays, Rivera testified, “I was extra nice, I shouldn’t have been 

as nice, but I did approve some of the higher numbers for rain days . . . [to] help [Salinas] 

along[;] we were hoping we [would] just get it moving along and we were going to approve 

this change order and keep going.”

In April 2015, only 10% to 15% of the work on the entire project had taken place. 

Rivera added that Salinas did a “poor job” in maintaining stormwater drainage at the 

project site. Rivera was also concerned with Salinas’s various safety violations. Rivera 

stated that Salinas was not showing up to the project on a regular basis, so Salinas was 

not “on site to maintain the traffic control plan.” Rivera would find signs knocked down or 

blown over; the signs were not maintained to adequately channel traffic.
6

Rivera explained that Salinas’s “pavement repair method . . . kept falling apart, so 

it led to potholes along the northern corridor everywhere.” Rivera questioned Salinas’s 

use of asbestos cement “because if the fibers become airborne, they can get in your lungs 

and they lead to some kind of . . . cancer.” Rivera stated that he met with Salinas and 

said, “[P]lease do not cut that [asbestos] line,” yet Salinas cut it anyway. Rivera further 

testified that Kaye & Sons, hired by Salinas as a subcontractor in November, completely 

stopped working on the project and abandoned the site by April 17, 2015.

On May 15, 2015, Rivera provided Salinas with written notice that there were still 

numerous concerns: Salinas’s revised recovery schedule was not acceptable; on May 14, 

“minimal crew doing minimal work” were on site; the level of effort needed to be increased; 

and Salinas failed to provide an acceptable recovery schedule, along with several other 

deficiencies.

C. Edmond’s Testimony

On May 1, 2015, Jeffrey Edmonds, the City’s Director of Engineering, provided 

Salinas with notice that Salinas failed “to adequately prosecute the work and maintain the 

work site”; “[t]he current progress [wa]s unacceptable”; Salinas was “delaying completion 

of the [w]ork”; NEI identified and provided Salinas with notice “identifying numerous 

ongoing problems and issues with Salinas’[s] performance”; Salinas failed to adequately 

maintain the traffic controls and roadway maintenance, resulting in “potentially hazardous 

conditions to the traveling public”; “poor site maintenance . . . caused excessive ponding

and poor conditions within the work site, further diminishing productivity”; and Salinas 

failed to adequately file verifications of existing utilities.
7

On May 16, 2015, Edmonds attended a meeting with Salinas, NEI, and City 

representatives. According to Edmonds, he “was hoping to leave that meeting with some 

kind of sense of confidence that [Salinas] would be able to complete this project in a 

reasonable amount of time,” but Edmonds “left that meeting with less confidence than 

what [he] came in with.” Edmonds thought that Salinas’s representatives acted as if “they 

were entitled to ask for significant amounts of additional time on the contract.”

On June 9, 2015, Edmonds notified Salinas that it was in default of the contract, 

including: “(1) a persistent failure to perform the [w]ork in accordance with the [c]ontract 

[d]ocuments, including failure to supply sufficient[ly] skilled workers or suitable materials 

or equipment; and (2) a persistent failure to adhere to the [p]rogress [s]chedule,” which 

justified termination for cause. Edmonds formally terminated the contract on June 9, 2015, 

and on June 19, 2015, the City entered a new contract with Clark Pipeline Services (CPS) 

to complete the project.

D. Ruling

Following the bench trial, the trial court ruled in favor of the City on its breach of 

contract claim, awarded it $706,221.67 in actual damages, prejudgment interest,

$419,420 in attorney’s fees and conditional appellate fees, issued findings of fact and 

conclusions of law, and issued a take-nothing judgment on Salinas’s breach of contract 

claim. This appeal followed.

II. LEGAL SUFFICIENCY

By its first issue, Salinas argues “[t]here is no evidence that [Salinas] breached the 

contract.” Specifically, Salinas asserts that “[t]he evidence introduced at trial falls far short 
8

of establishing any default by [Salinas] through defective work that had to be removed 

and replaced” by CPS. The City asserts there was legally sufficient evidence that Salinas 

breached the contract in at least four different ways: (1) failing to make satisfactory 

progress toward timely completion; (2) failing to adequately staff the project; (3) failing to 

devote sufficient resources to the job; and (4) persistently disregarding safety and 

instructions of the engineer. See Acceptance Ins. Co. v. Lifecare Corp., 89 S.W.3d 773, 

782 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.) (holding that a plaintiff alleging 

a breach of contract has the burden to prove (1) a valid contract existed; (2) the plaintiff 

performed or tendered performance; (3) the defendant breached the contract; and (4) the 

plaintiff sustained damage as a result of the defendant’s breach).

A. Standard of Review

In a legal sufficiency assessment, we determine whether the evidence supporting 

the challenged findings rises to a level that would enable reasonable and fair-minded 

people to differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 

(Tex. 2005). Evidence is legally insufficient to support a disputed fact finding when (1) 

evidence of a vital fact is absent, (2) rules of law or evidence bar the court from giving 

weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove 

a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes 

the opposite of the vital fact. Id. at 810. We view the evidence in the light most favorable 

to the judgment and indulge every reasonable inference that would support it. Id. at 822. 

The factfinder is the sole judge of the weight and credibility of the evidence. Id. at 819. 

When the evidence is conflicting, we must presume that the factfinder resolved the 
9

inconsistency in favor of the challenged finding if a reasonable person could do so. Id. at 

821. We do not substitute our judgment for that of the factfinder if the evidence falls within 

this zone of reasonable disagreement. Id. at 822.

B. Discussion

The contract expressly states that the following events constitute a default and 

justify termination for cause: (1) the “[c]ontractor’s persistent failure to perform the Work 

in accordance with the Contract Documents, including failure to supply sufficient skilled 

workers or suitable materials or equipment;” (2) “[f]ailure to adhere to the Progress 

Schedule”; (3) the contractor’s disregard of laws or regulations; and (4) the contractor’s 

repeated disregard of the authority of the City’s team. 

As extended, substantial completion was required by August 6, 2015. Yet, the 

recovery schedule Salinas submitted to the City, did not contain a substantial completion 

date, but contained a final completion date of September 30, 2015. Thus, Salinas’s own 

recovery schedule demonstrated he was unable to meet the contract’s deadline. 2

Therefore, there was evidence of Salinas’s failure to adhere to the progress schedule.

Furthermore, numerous notices to Salinas dated March 24, April 30, May 1, May 

15, June 9, June 15, June 19, and were submitted into evidence providing that Salinas 

failed to comply with a litany of contract terms. For example, on March 24, 2015, NEI 

informed Salinas it had concerns regarding the lack of progress, its poor safety practices, 

and its failure to meet the terms of the contract. The notices included several examples 

2 The original contract was for a total of 180 days. Two change orders were granted for 104 days. 

Thus, the total time allowed on the contract was 284 days. As of June 9, 2015, Salinas had used 225 days, 

and there was evidence that only about 10% of the work on the contract had been completed.
10

of what NEI deemed were contract violations, including the absence of a qualified 

superintendent to oversee the project. NEI expressed that only thirty-four days remained 

to reach substantial completion, but only 11% of the construction work had been 

completed since Salinas began the project. 

On April 30, 2015, NEI informed Salinas that the City was “gravely concerned 

about the progress of construction,” Salinas “has abandoned work on the project,” and 

the “failure to adequately maintain the project site have become a public affairs nightmare 

for” the City. The notice further detailed several other violations.3 On May 15, 2015, NEI 

reiterated that the effort being put forth by Salinas “is NOT considered adequate to 

‘Recover’ the project schedule,” and that it was “imperative that [Salinas] immediately 

marshal its resources and proceed to meet the accelerated schedule as soon as 

possible.”

Several NEI construction site inspection reports were admitted into evidence. Most 

of the notices began with “no progress of work for today” while several other reports noted 

“no workers on site.” Furthermore, all inspection reports scrutinized various 

discrepancies, issues, and contract violations, along with several pictures of the 

complained-of issues. Almost every daily inspection report dated between March 4, 2015, 

3 Some of these violations were that loose gravel existed on the public travel lanes; there was 

debris in the driveways to multiple businesses; silt accumulated in several locations; surplus construction 

material from completed work existed including the asbestos-cement pipe; excess excavated material 

obstructed pedestrian access and covered existing access; and several conflictions with stormwater 

requirements, among others.
11

through May 29, 2015, included an array of photos of alleged contract violations. 

Shoemaker, Edmonds, Rivera, all corroborated the substance of the notices.4

Daniel Salinas, a Salinas representative, conceded that the contract specifically 

prohibited cutting the asbestos cement pipe; however, Daniel claimed Salinas was 

unaware its employee had cut the pipe. According to Daniel, the contract required the 

contractor to dispose of the asbestos pipe in accordance with all applicable regulations, 

but Daniel stated Salinas was not able to comply “before [the] contract was terminated” 

because he claimed the City needed to pay for those fees. However, Daniel 

acknowledged that he “had from March [until] June” to comply with the applicable 

regulations. Thus, based on the foregoing, we conclude there was legally sufficient 

evidence that Salinas breached the contract, and we overrule its first issue. See City of 

Keller, 168 S.W.3d at 822.

III. FACTUAL SUFFICIENCY

By its second issue, Salinas argues the evidence was factually insufficient to show 

that the City did not breach the contract. Salinas argues the “record is replete with 

evidence establishing that the City breached the contract and should be held liable for 

damages.” According to Salinas, the City breached the contract by: (1) prohibiting Salinas 

from working while the first change order was being processed; (2) failing to provide timely 

responses to RFIs submitted by Salinas; (3) not offering equitable adjustments in contract 

time; and (4) not paying for work that had been completed.

4 On cross-examination, when Daniel Salinas, a Salinas representative, was questioned regarding 

the matter in the notices, he often replied: “That’s what it says.”
12

A. Standard of Review

“When reviewing the factual sufficiency of the evidence, we examine the entire 

record, considering all the evidence both in favor of and contrary to the challenged 

finding.” Vast Constr., LLC v. CTC Contractors, LLC, 526 S.W.3d 709, 723 (Tex. App.—

Houston [14th Dist.] 2017, no pet.). When a party attacks the factual sufficiency of the 

evidence pertaining to a finding on which the party did not have the burden of proof, we 

may set aside the finding only if it is so contrary to the overwhelming weight of the 

evidence as to be clearly wrong and unjust. Bennett v. Comm’n for Law. Discipline, 489 

S.W.3d 58, 66 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see also Torres v. 

Cameron County, No. 13-20-00568-CV, 2022 WL 17844210, at *5 (Tex. App.—Corpus 

Christi–Edinburg Dec. 22, 2022, no pet.) (mem. op.). “We consider all the evidence, but 

we will not reverse the judgment unless the evidence which supports the finding is so 

weak as to [make the finding] clearly wrong and manifestly unjust.” 4922 Holdings, LLC 

v. Rivera, 625 S.W.3d 316, 324 (Tex. App.—Houston [14th Dist.] 2021, pet. denied)

(cleaned up). “The amount of evidence necessary to affirm is far less than the amount 

necessary to reverse a judgment.” Id. “The trier of fact is the sole judge of witnesses’

credibility and the weight afforded their testimony,” and “we may not pass upon the 

witnesses’ credibility or substitute our judgment for that of the fact[ ]finder, even if the 

evidence would also support a different result.” Id. at 825; see City of Keller, 168 S.W.3d 

at 819–20.

B. Discussion

Salinas asserts that the record shows the City took three months to process the 
13

first change order while also insisting that no work be performed on tasks identified in the 

change order until the change order was approved by the City. However, the evidence 

provided that the express terms of the contract provided that “[a]cceptance of a Change 

Order by [Salinas] constitutes full accord and satisfaction for any and all claims and costs 

of any kind . . . including but not limited to impact [and] delay . . . arising from the subject 

matter of the Change Order.” Thus, Salinas agreed that its acceptance of a change order 

would result in forfeiting a complaint regarding delays. Moreover, the contract provided

that all change orders required approval by the City Council, and the “approval process 

requires a minimum of 45 days after submission.” The evidence at trial established that 

Salinas signed the change order on April 27, 2015, and the City obtained all required 

signatures by May 21, 2015—well within the 45 days required by the contract. Thus, the 

trial court did not err when it found that the City did not breach the contract by allegedly 

delaying Salinas’s performance on the contract via change order approvals.

Next, in a single sentence, Salinas asserts the City breached the contract by 

“routinely fail[ing] to provide timely responses to RFIs submitted by [Salinas].”5 However, 

the contract did not impose any deadlines regarding RFIs. The City provided evidence of 

a “Request for Information Analysis” detailing the RFI number, issue description, bates 

number, Salinas’s request date, and the City’s actual response date. Based on the 

twenty-three RFIs Salinas submitted, the City’s average response time was 4.9 days. 

Salinas does not indicate which provision of the contract the City allegedly violated. See

TEX. R. APP. P. 38.1(i). Therefore, we cannot conclude that the City breached the contract 

5 An RFI is a “Request for Information.” 
14

in this regard.

Next, Salinas asserts that the City breached the contract because the “City failed 

to advise any of the bidding contractors that the sanitary sewer line B already had breaks 

in it as evidenced by a prior video” because the “video made it clear that the repair 

specifications in the initial plan were not feasible.” However, Salinas does not direct us to 

any portion of the contract the City violated, and we are unable to determine which part 

of the contract the City may have violated. See id. In other words, Salinas does not direct 

us to any provision of the contract requiring this disclosure. See id.

Rivera testified that the City conducted “preliminary engineering” to assess all 

existing utilities and obtained a video of the existing sewer line around 2012 showing 

some breaks in the pipeline. According to Rivera, the project “called for rebuilding” the 

new line, and the City “had made the decision to either rehab, repair, or do something 

[else] to both sewer lines.” As a result, “the contractors all knew what they bid on” because 

“it was part of the project the whole time.” Furthermore, Rivera testified that the 

contractors “were supposed to do an additional investigation as part of their contract and 

provide that information to [the City]” because things might have changed; for instance,

the pipe might have “collapsed a little more or shifted some more” by the time the 

contractors would begin work at the end of 2014. Rivera specified that “before a decision 

to rehabilitate” a pipeline occurs, contractors “should know that an investigation was done 

of some sort and whether there was video or another type of investigation, visual or some 

sort . . . done previously by the City’s own staff.” Thus, we are unable to determine that 

the trial court’s finding that the City did not breach the contract was clearly wrong or unjust.
15

See Bennett, 489 S.W.3d at 66.

Lastly, Salinas argues the City “breached the contract by not paying for work that 

had actually been completed.” According to Salinas, the City failed to pay for estimates

seven and eight. Estimate seven is dated May 30, 2015, and estimate eight is dated June 

30, 2015. Salinas conceded that a provision in the contract authorized the City to withhold 

payment on an estimate if there were grounds for terminating the contract. Here, grounds 

to terminate the contract surfaced prior to May 30, 2015.

6 Therefore, we cannot conclude 

that the City breached the contract by failing to pay “for work that had actually been 

completed.” When viewed in a neutral light, the trial court’s finding that the City did not 

breach the contract is not “so contrary to the overwhelming weight of the evidence as to 

be clearly wrong and unjust.” 4922 Holdings, 625 S.W.3d at 324. We overrule Salinas’s 

second issue.

IV. DAMAGES

By its third issue, Salinas argues there was legally insufficient evidence of 

damages. Specifically, Salinas argues there was no evidence that it was necessary for 

the City to repair or replace Salinas’s work because the work he performed was defective.

Salinas further argues there was no evidence that the cost of the replacement work was 

reasonable.

A. Applicable Law

6 Some of these grounds included persistently failing to perform work in accordance with the 

contract, failing to supply sufficient skilled workers or suitable materials or equipment, failing to adhere to 

the progress schedule, disregarding laws or regulations regarding safety, and a repeated disregard of the 

authority of the City’s team.
16

The measures of damages for the breach of a construction contract include 

remedial damages and difference-in-value damages. McGinty v. Hennen, 372 S.W.3d 

625, 627 (Tex. 2012) (per curiam). Remedial damages, which are applicable here, include

the cost to complete or repair less the unpaid balance on the contract price. Id. A party 

seeking to recover remedial damages must prove that the damages sought are 

reasonable and necessary. See id.; Mustang Pipeline Co. v. Driver Pipeline Co., 134 

S.W.3d 195, 200 (Tex. 2004) (per curiam). “[T]he plaintiff must show more than simply 

‘the nature of the injuries, the character of and need for the services rendered, and the 

amounts charged therefor.’” McGinty, 372 S.W.3d at 627 (quoting Dall. Ry. & Terminal 

Co. v. Gossett, 294 S.W.2d 377, 383 (Tex. 1956)). “Instead, some other ‘evidence 

showing that the charges are reasonable’ is required.” Id.

B. The Evidence

Shoemaker testified that CPS finished the project in 135 days. Shoemaker stated 

that “as a result of Salinas’s quality control problems[,] . . . [the City] had to rework some 

of the water lines that Salinas installed.” Some water lines “had to be removed and 

replaced by [CPS] because those lines had been spliced without the City’s knowledge, 

and it’s improper to splice that service line,” Shoemaker stated. He also clarified that there 

were some problems with curb inlets, and CPS “replace[d] those with a cast in place, as 

[was] required in the specifications.” CPS also had to rework “storm water laterals”; CPS 

“had to go in and replace it.” In particular, CPS had to “open up, excavate some areas” 

because “Salinas improperly cut the length of the storm water rigid concrete pipe.” 
17

According to Shoemaker, Salinas had placed some “base material [that] had to be 

removed. It had failures, it has spot failures throughout it . . . so we had to pull out the 

entire base, rework it.” Shoemaker added that the base material was tested by Rock 

Engineering, “and those tests results indicated it had to [be removed] and disposed of.”

Specifically, Rock Engineering performed six tests for geo-technical reports, but for three 

of those, Rock Engineering was “unable to even pull the material to conduct the test 

because the compaction was not there[;] it was too unstable even to get a core sample.” 

CPS additionally “had to haul off some[]asbestos pipe that was left[]- exposed.”

The City paid CPS $2,078,191.69 for its services, and CPS’s invoice was admitted 

into evidence. Shoemaker clarified that CPS’s invoice went through the City’s engineering 

department for approval. Shoemaker explained that the amount charged by CPS was in 

accordance with the standard of costs and expenses on similar projects in the industry. 

Specifically, in this case, CPS was the third lowest bidder. Although CPS’s “bid was a 

little bit in excess of the actual payment that was paid to them at the end,” the City and 

CPS “negotiated out” and “reduce[d it] to a reasonable rate.” Thus, “that cost was based 

on competitive bids and then further negotiated down, for the City’s benefit.” Additionally, 

Rivera testified that the amount the City paid CPS to finish the project was reasonable 

“given the state of the project as it existed after Salinas.” Specifically, Rivera opined: 

[H]aving to rework the existing site and having to kind of negotiate, 

using the unit rates that were established from the Salinas contract 

and then also from the [CPS] unit rates that were established on the 

bidding of the same project, I think ultimately that was a fair price that 

they—they were paid for that work.
18

Shoemaker believed that it was also necessary to seek additional engineering 

services from NEI to oversee CPS’s project, which cost $136,000. Shoemaker stated that 

the charges by NEI were reasonable and proper in accordance with local prices. Rivera 

explained that NEI’s requested amount was negotiated each time: “[A]ny time I request 

an amendment to a contract I have to provide or discuss the scope of work with the City’s 

project manager . . . and it goes back and forth [because] we don’t bill like contractors do, 

on a unit rate basis, it’s pretty much a lump sum.”

Shoemaker further stated that it was necessary to enter an additional contract with 

the barricade contractor for the additional time and work, which totaled $2,000.

Shoemaker believed $2,000 was reasonable because “[t]he City assumed that contract 

direct[ly]; instead of passing it through a general contractor, [the City] did a direct cost.” 

This was “more cost effective,” according to Shoemaker.

Christopher Clark, a CPS representative, testified that the City presented him with 

Salinas’s numbers and asked if it would agree to complete the project. Clark stated that 

CPS completed “a six-month project in three months.” He added that the street was torn;

the “elevation was wrong on the inlets”; “one of the sidewalks was wrong, it wasn’t ADA 

compliant”; and “the bells[

7

] were cut off at the middle of the road.” According to Clark, 

the inlets were at the wrong elevations, and “they’re expensive to pull out because they’re 

big.” Clark explained that CPS had to pull them up and “dowel everything [into the] 

concrete,” which is “very time-consuming.” Clark informed the trial court that CPS also 

had to perform repairs on the underground utilities by pulling the existing line that was 

7 Clark explained a bell “is where the new pipe goes into the other one.” 
19

laid. Clark stated that CPS disposed of asbestos pipe that was “sitting on the side of the 

road . . . by Stripes,” which “was shocking” to him.

According to Clark, NEI assessed and surveyed Salinas’s work to determine 

whether it needed to be corrected; Clark had no authority to make those determinations—

it only followed directives. Out of the 10% of the project Salinas had completed, Clark 

estimated the about 8–9% “was bad.” Clark opined that he believed the amount of work 

CPS completed and the amount the City paid CPS for the project were reasonable; he 

further added that he worked several nights and weekends to complete the project.

C. Discussion

The trial court awarded the City $706,221.67 in damages, including: (1) 

$575,834.67 for additional construction costs,

8

(2) $136,383 for additional engineering 

costs, and (3) $2,001 for safety barricading costs. The trial court found that Rivera’s thirtyyear experience as an engineer and his overseeing of this project at the preliminary stage, 

the design stage, and the bidding stage as submitted to the City for approval, gave him

sufficient background and expertise to opine on whether the City’s payment to CPS was 

reasonable. Shoemaker and Clark testified that it was necessary for Clark to perform 

additional work on the project because CPS needed to rework some of Salinas’s 

construction. For example, Shoemaker stated that the City had to pay CPS for bringing 

in “virgin limestone” while Salinas’s contract required Salinas to rework an existing base. 

Thus, CPS’s and Salinas’s contracts differed in terms because according to Shoemaker,

8 The City paid CPS $2,078.191.69, minus the unpaid balance on Salinas’s contract 

$1,510,357.02, which equaled a net result of $567,834.67.
20

“the existing material was ruined by the actions that Salinas took,” so the City “had to 

completely remove it, it could not be reused or salvaged and so therefore, virgin material 

was brought in. Once you mix it with cement, you can’t reuse it.” 

Rock Engineering’s testing results were also admitted into evidence, 

demonstrating that material Salinas used had failed testing. Therefore, a reasonable 

factfinder could conclude that Salinas’s work was deficient at the time of termination. See 

McGinty, 372 S.W.3d at 627. Because there was some evidence that Clark’s contract 

required him to remediate Salinas’s efforts, we reject Salinas’s argument that the City 

failed to produce evidence that it was necessary for Clark to repair Salinas’s work. See

id.

Regarding additional safety services, Rivera stated that he had to investigate 

existing conditions, and survey sections to verify if they complied with safety 

requirements. Shoemaker testified that NEI was providing the city with the day-to-day 

activities of CPS’s project, monitoring Clark’s work progress, reviewing Clark’s RFIs, and 

reviewing CPS’s pay estimates. Shoemaker stated that any completion contract would 

have required these services whether the project was to be completed by Salinas, Clark, 

or another third party. The trial court further found that Shoemaker’s testimony regarding 

the reasonableness of the charges was sufficient based on Shoemaker’s experience and 

qualifications. Shoemaker clarified that each NEI amendment was “specifically negotiated 

out for the amount of hours and time that [the City] wanted [NEI] on site for the project 

and the requirements.” Thus, “each and every one of [those amendments] are accurate

and reasonable, based on the fee and the costs proposals that [NEI] provided to [the City] 
21

and the scope of work” they were asked to do. Accordingly, there was evidence that 

additional engineering services were required and necessary to complete the project. See 

id.

Regarding the safety barricades, Shoemaker testified that they were necessary to 

ensure the safety of the public. The City also provided evidence that keeping that 

contracting in-house was cheaper, and thus, the trial court could have determined this 

amount was reasonable and necessary. Based on the evidence produce at trial, we 

conclude that there was evidence that the additional construction costs, additional 

engineering services, and safety barricades were reasonable and necessary. See id. We 

overrule Salinas’s third issue. 

V. ATTORNEY’S FEES

From S&S, the trial court awarded the City attorney’s fees pursuant to § 38.001 of 

the Texas Civil Practice & Remedies Code9, § 16.02(f) of the contract, and § 2251.043 of 

the Texas Government Code. From SCT, the trial court awarded the City attorney’s fees 

under § 16.02(f) of the general conditions of the contract and under § 2251.03 of the 

Texas Government Code.

By its last issue, which includes several sub-issues, Salinas argues that the City is 

not entitled to recover attorney’s fees: (1) because S&S was not a party to the contract 

under § 38.001; (2)–(3) because the City failed to prove and segregate attorney’s fees

under § 16.02(f) of the contract; (4) because the award is excessive and unreasonable; 

9 Because the award of attorney’s fees under this section is dispositive, we need not address 

whether attorney’s fees are recoverable under § 16.02(f) of the contract and § 2251.043 of the Texas 

Government Code.
22

(5)–(6) because the Prompt Payment Act is not a basis for recovery, and the “trial court 

had no legal basis to award appellate attorney’s fees”; and (7) because there is insufficient 

evidence to support the award of appellate attorney’s fees.10

A. The Hearing

Attorney Ken Fields testified that he has been practicing law for over forty years, 

and charges $225 an hour for legal services, which he stated was reasonable and 

customarily charged in the locality for similar services.

11 Fields discussed the board 

certifications of the lawyers in his practice and their experience (ranging in the decades) 

regarding construction disputes. According to Fields, “construction cases are very factintensive and technical” as they involve “a large number of documents” and “number of 

legal questions that arose from the interpretation of the parties’ . . . long, voluminous 

construction contract.”

12 He further briefed in detail issues between governmental 

immunity and Salinas’s claims and remarked that “both parties did a great deal of the 

briefing in the case.” According to Fields, this type of case required a greater-thanaverage amount of skill on the lawyers’ part. Fields added that he charged a fixed fee.

10 Salinas also argues that the City is not entitled to recover attorney’s fees from SCT pursuant to 

§ 38.001 because SCT is a limited partnership, and at the time suit was filed, the statute limited recovery 

of attorney’s fees to “an individual or corporation.” However, the trial court did not find that SCT was 

responsible for attorney’s fees pursuant to § 38.001; therefore, we need not address this argument. Instead, 

the trial court found that the SCT was liable for attorney’s fees under § 16.02(f) of the contract and 

§ 2251.043 of the government code. 

11 Fields added that these rates “may be on the low side, if anything.”

12 The trial court stated that the record in this case “occupied eight shelves in [its] chambers,” and 

that “this is not your usual case . . . . [T]his is volumes, boxes that were presented to the Court. And I can’t 

image what you-all had in your files, because obviously not everything you had in your files was admitted 

and presented to the Court.”
23

Fields explained that Salinas was suing the City for over $1,000,000 while the City 

was attempting to recover over $700,000 in compensatory damages. The City tried to 

settle this case numerous times, and the case unsuccessfully went to mediation twice.

He added that each settlement the City offered “was more favorable than the results” the 

City obtained in this case. Because of the unsuccessful settlement efforts, the City had 

no “choice but to prepare the case for trial and try it and that gets expensive in this kind 

of case.” Fields explained the City spent four to five months for trial; the trial here lasted 

nine days. According to Fields, he disclosed to Salinas that the City was requesting 

$157,919 in fees “only for the Horne Road dispute . . . and [he] explicitly stated that those 

were only the fees incurred through June of 2019 . . . [a]nd [he] also explicitly stated that 

additional fees would continue to be incurred as the case progressed.” 

Regarding the paralegal fees, Fields stated that his paralegal, who he described 

as “excellent,” had over twenty years of experience, and charged $85 an hour. The work 

she performed was done under the attorneys’ supervision, and the nature of the work she 

performed was reflected in the fee statements.

Additionally, Fields opined that a reasonable fee to represent the City in the event 

of an appeal would cost at least $35,000, and if review was sought in the supreme court 

an additional $20,000 would be reasonable. “[T]hose amounts are quite a bit lower than I 

would normally estimate, but I am hoping that the work that has already been done during 

the posttrial briefing period will shorten the appellate process some,” he clarified.

The trial court admitted the firm’s periodic fee statements into evidence. Fields 

testified that those fee statements accurately reflected the work that was done on this 
24

case. It contained a description of the services performed, identified who performed them, 

when they were performed, the amount of time spent on those services, and the dollar 

amount billed to the City. Fields explained that these statements “were compiled from 

entries made at or near the time the work was done, by or from information transmitted 

by someone with knowledge of the facts stated in the fee statements.” Fields further 

created a tabular summary of attorney’s fees, which compiled all invoices and the gross 

amount billed.

The trial court found that the City was entitled to recover from Salinas $419,420 as 

reasonable and necessary attorney’s fees, $35,000 in the event Salinas pursued an 

appeal in the court of appeals, and $20,000 in the event Salinas sought review in the 

Texas Supreme Court.

B. S&S & § 38.001 of the Texas Civil Practice & Remedies Code

First, Salinas argues that the City cannot recover attorney’s fees from S&S 

because “there was no contract between the City and S&S” and the “only contract at issue 

in this appeal is the contract between SCT and the City.”13

Section 38.001(8) allows a prevailing party to recover its “reasonable attorney’s 

fees . . . in addition to the amount of a valid claim and costs,” pursuant to a written 

contract. TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(b)(8). To recovery attorney’s fees 

under this section, “the claimant must present the claim to the opposing party or to a duly 

authorized agent of the opposing party.” Richard Gill Co. v. Jackson’s Landing Owners’

13 We note that although S&S and SCT filed claims against the City in the trial court for breach of 

contract, Salinas now claims the City may not recover against S&S. 
25

Ass’n, 758 S.W.2d 921, 927 (Tex. App.—Corpus Christi–Edinburg 1988, writ denied). 

“The purpose of presentment is to make the opposing party aware that a claim is asserted 

against him, and to allow him an opportunity to pay the claim or to perform as required 

and to thereby avoid incurring an obligation for attorney’s fees.” Id. at 927. General 

partners are jointly and severally liable with each other and with the limited partnership 

for the partnership’s obligations. See TEX. BUS. ORGS. CODE ANN. § 153.152(b); Forney 

921 Lot Dev. Partners I, L.P. v. Paul Taylor Homes, Ltd., 349 S.W.3d 258, 273 (Tex. 

App.—Dallas 2011, pet. denied); Shaw v. Kennedy, Ltd., 879 S.W.2d 240, 247 (Tex. 

App.—Amarillo 1994).

It is undisputed that S&S is a general partner of SCT, and “a general partner of a 

limited partnership is liable for the debts of that limited partnership.” Forney 921 Lot Dev. 

Partners I, L.P., 349 S.W.3d at 272. Therefore, S&S is liable for the debts of SCT. See 

id. S&S further “challenges [the City’s] claim for attorney’s fees against it because the City 

did not timely present any attorney fee claim to it,” and as a matter of law, the City failed 

to provide notice of the claim. However, there was evidence that on November 28, 2016, 

Edmonds sent SCT a letter demanding payment of $716,148 for reasonable and 

necessary costs to complete the project pursuant to the contract. Additionally, on August 

6, 2019, the City again demanded payment from S&S’s counsel for damages in the 

amount of $706,221. “No particular form or manner of presentment is required.” Richard 

Gill, 758 S.W.2d at 927. This is sufficient evidence that demand was made against Salinas 

for the amounts claimed in the present suit. See id. Therefore, we reject Salinas’s 

argument that the City may not recover attorney’s fees from S&S.
26

C. Section 16.02(f) of the Contract

Next, Salinas argues that the fees “that were awarded in the judgment reflect fees 

that could not have been authorized by [§] 16.02(f).”

“Parties are free to contract for a fee-recovery standard either looser or stricter 

than Chapter 38’s.” Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 

650, 653 (Tex. 2009). When parties include either standard of provision in a contract, the 

language of the contract controls, rather than the language of the statute. Id. at 654–56. 

Here, the parties did not contract for a recovery of attorney’s fees, and the parties do not 

refer us to any provision in the contract relating to the recovery of attorney’s fees. Salinas 

acknowledges that the contract is “silent as to any attorney fee shifting for litigation or 

arbitration,” yet he argues that § 16.02(f) of the contract “limits an award of attorney’s fees 

to completion costs.”

Section 16.02(f) provides that if the City terminates the contract due to the 

contractor’s default, the contractor is responsible for the amount left on the contract “if the 

unpaid balance exceeds the cost to complete the [w]ork. This cost to complete the [w]ork 

may include related claims, costs, losses, damages and the fees and charges of 

engineers . . . attorneys, and other professionals retained by the [City.].” Rather than 

address the recovery of attorney’s fees in a litigation proceeding, this general provision 

of § 16.02(f) relates to costs to the complete the project and the recovery of fees from 

different professionals, including attorneys. To the extent that the City incurred fees by a 

professional, the City would be able to recover that fee as a completion cost. In this 

regard, Fields testified that the City incurred prelitigation attorney’s fees for the completion 
27

of Horne Road. As of June 2019, Fields explained that prelitigation attorney’s fees were 

in the amount of $157,919—this was the cost to complete the work. Because § 16.04(f) 

the contract authorizes professional fees, including attorneys, and the City incurred 

prelitigation fees in the amount of $157,919, the trial court did not err in awarding the City 

attorney’s fees on this basis. See Intercontinental Grp. P’ship, 295 S.W.3d at 653.

Salinas further argues that the City failed to comply with a condition precedent. 

According to Salinas, the City was required to submit its attorney’s fees via change order, 

and because the City failed to submit its attorney’s fees via change order, the trial court 

erred in awarding attorney’s fees under § 16.02(f). Salinas relies on the following: 

“Claims, costs, losses, and damages incurred by [the City] are to be reviewed as to their 

reasonableness and incorporated in a Change Order by OAR. [The City] is not required 

to obtain the lowest price for the Work performed when exercising its right or remedies 

under this paragraph.” The foregoing clause requiring damages to be submitted via 

change order relates to the work performed and submitting the work performed via 

change order. It does not address the recovery of attorney’s fees. Therefore, we conclude 

that the City did not fail to comply with a condition precedent. See id.

D. Reasonableness & Sufficiency

By its next sub-issues, Salinas argues the City failed to prove its attorney’s fees 

claim, failed to segregate attorney’s fees, and the attorney’s fees were excessive and 

unreasonable.

1. Applicable Law & Standard of Review
28

Generally, the award of attorney’s fees rests in the sound discretion of the trial 

court. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012). The prevailing party 

has the burden to prove its fees are both reasonable and necessary. Rohrmoos Venture 

v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 487 (Tex. 2019). Some factors guiding 

the factfinder in determining reasonableness and necessity 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 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 494. Without evidence of these factors, “the 

fact[ ]finder has no meaningful way to determine if the fees sought are in fact reasonable 

and necessary.” Id.

Whether an award of attorney’s fees is reasonable is a question of fact; we review 

the reasonableness of the amount of the attorney’s fees awarded for sufficiency of the 

evidence. Sundance Mins., L.P. v. Moore, 354 S.W.3d 507, 513 (Tex. App.—Fort Worth 

2011, pet. denied). “Sufficient evidence includes, at a minimum, evidence of (1) particular 

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

services were performed, (4) the reasonable amount of time required to perform the 
29

services, and (5) the reasonable hourly rate for each person performing such services.” 

Rohrmoos, 578 S.W.3d at 498. “This base lodestar figure should approximate the 

reasonable value of legal services provided in prosecuting or defending the prevailing 

party’s claim through the litigation process,” and “is the standard for calculating the 

reasonableness and necessity of attorney’s fees in” this situation. Id. To support the 

requested amount of attorney’s fees, parties frequently rely on the testimony or affidavit 

of the attorney of record. See id. at 476; El Apple, 370 S.W.3d at 759. The trial court found 

that the City was entitled to recover from Salinas $419,420 as reasonable and necessary 

attorney’s fees, so we look for evidence at trial supporting this amount.

2. Discussion

In accordance with the factors in Rohrmoos, Fields provided over one hundred 

pages of statements detailing the work that was done, the date the work was completed, 

a description of the work completed, the identification of the person that performed the 

work, the time spent on each item, and the dollar amount that was billed. See 578 S.W.3d 

at 502 (“[B]illing records are strongly encouraged to prove the reasonableness and 

necessity of requested fees when those elements are contested.”). Thus, there were 

contemporaneous records including the time spent on specific tasks. Cf. Long v. Griffin, 

442 S.W.3d 253, 255 (Tex. 2014) (per curiam) (holding that an attorney’s affidavit offering 

only generalities that he spent 300 hours on a case, another expended 344.50 hours, and 

the attorneys’ respective hourly rates was insufficient where there was no evidence to 

inform the trial court the time spent on specific tasks other than “the case involved 

extensive discovery, several pretrial hearings, multiple summary judgment motions, and 
30

a four and one-half day trial”). Fields further provided the trial court with a billing summary

and explained how the summary worked: it reflected amounts for which the attorneys 

were not seeking compensation based on the federal court claims versus the amounts

attributed to the work performed; it reflected the total hours for each person and the dollar 

amount, based on their hourly rate; it subtracted total deductions; and it reflected the 

amount awarded by the trial court in this suit. Cf. Rohrmoos, 578 S.W.3d at 503 (holding 

that the attorney’s testimony that he searched through “millions” of emails and reviewed 

“hundreds of thousands” of papers in discovery, took more than forty depositions, and 

drafted a forty-page motion for summary judgment was too general to establish 

reasonableness and necessity of his request for $800,000 in attorney’s fees because it 

lacked sufficient detail about the work done and how much time was spent on the tasks).

Fields testified regarding the time and labor involved, novelty and difficultly of the 

issues in the case, the skill required to perform the services, the fee customarily charged, 

the amount in controversy, the results obtained, the nature and length of his professional 

relationship with the City, the experience and reputation of his firm, and the fixed statute 

of the fees. See id. at 491. Fields acknowledged that he was not precluded from taking 

on other work and he did not need to act in an emergency basis. We conclude that the 

record contains sufficient evidence of the Rohrmoos factors.

Salinas further argues that the City failed to segregate its attorney’s fees. “[A] 

claimant must segregate legal fees accrued for those claims for which attorney[’]s fees 

are recoverable from those that are not.” Kinsel v. Lindsey, 526 S.W.3d 411, 427 (Tex. 

2017). Here, the City was entitled to professional fees as costs to complete to project 
31

pursuant to § 16.02(f) of the contract, and it was entitled to attorneys’ fees as a prevailing 

party pursuant to § 38.001 of the civil practice and remedies code. Thus, the City was not 

required to segregate its attorney’s fees because it was entitled to the recovery of 

professional fees as costs to complete the work and attorney’s fees to prosecute and 

defend breach of contract claims thereafter. Thus, the City was not required to segregate 

legal fees accrued for those claims for which attorney’s fees were not recoverable. See 

id. Fields stated that on July 26, 2019, the City was requesting attorney’s fees in the 

amount of $157,919 for the dispute regarding the completion of Horne Road only. Fields 

informed Salinas that additional fees would continue to incur. Here, Fields testified that 

those additional fees amounted to $416,728. Fields testified that he redacted attorney’s 

fees as they related to Salinas’s constitutional federal claims, and the time spent on those 

matters were deducted from the total amount of time spent on this claim. This is reflected 

on the invoices and billing summary submitted into evidence. Therefore, we reject 

Salinas’s segregation argument. Based on the foregoing testimony and evidence, we 

conclude there was sufficient evidence to support the attorney’s fees award. See 

Rohrmoos, 578 S.W.3d at 494.

E. Prompt Payment Act

Salinas argues that § 2251.043 does not authorize an owner who successfully 

defends a payment claim by a contractor to recover attorney’s fees. The statute recites: 

“In a formal administrative or judicial action to collect an invoice payment or interest due 

under this chapter, the opposing party, which may be the governmental entity or the 

vendor, shall pay the reasonable attorney fees of the prevailing party.” TEX. GOV’T CODE 
32

ANN. § 2251.043. The express language in the statute provides for an award of attorney’s 

fees to the prevailing party. Here, the trial court found that the City prevailed on Salinas’s 

chapter 2251 claim, and we agree. See Mag Instrument, Inc. v. G.T. Sales Inc., 294 

S.W.3d 800, 808 (Tex. App.—Dallas 2009, pet. denied) (“[T]he prevailing party is typically 

the party who either successfully prosecutes the action or successfully defends against 

it, prevailing on the main issue.”). Therefore, the City, as the prevailing party, is entitled 

to recover attorney’s fees under that statute. And, SCT, as the opposing party, was 

required to pay the City’s attorney’s fees. Accordingly, we find that § 2251.043 also 

authorized the City to collect attorney’s fees as a prevailing party. See TEX. GOV’T CODE 

ANN. § 2251.043.

F. Appellate Attorney’s Fees

Salinas argues that because the City was not entitled to recover attorney’s fees 

under § 38.001, it cannot recover appellate fees. However, we have already determined 

that the City was entitled to attorney’s fees pursuant to § 38.001 and § 2251.043. “If trial 

attorney’s fees are mandatory under [§] 38.001, then appellate attorney’s fees are also 

mandatory when proof of reasonable fees is presented.” Ventling v. Johnson, 466 S.W.3d 

143, 154 (Tex. 2015). Thus, if attorney’s fees are mandatory under a statute, then 

appellate attorney’s fees are also mandatory. See id.; Iola Barker v. Hurst, 632 S.W.3d 

175, 195 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (“When, as here, trial attorney’s 

fees are mandatory under statute, then appellate attorney’s fees are also mandatory 

when proof of reasonable fees is presented.”). Applying the rule of the supreme court, we 

hold that § 2251.043’s use of the phrase “shall pay the reasonable attorney fees of the 
33

prevailing party” makes an award of attorney’s fees mandatory upon demand and proof 

thereof and therefore requires an award of appellate fees upon proof thereof. See

Ventling, 466 S.W.3d at 154; Brent v. Field, 275 S.W.3d 611, 622 (Tex. App.—Amarillo 

2008, no pet.) (“A court possesses discretion to determine the amount of attorney’s fees, 

but it lacks discretion to deny attorney’s fees if they are proper under [§] 38.001.”). 

Because attorney’s fees were mandatory under § 38.001 and § 2251.043, the City was 

entitled to recover appellate attorney’s fees pursuant to the same.

Salinas further argues that there was insufficient evidence to support the award of 

appellate attorney’s fees. A “party seeking to recover contingent appellate fees from the 

need to provide opinion testimony about the services it reasonably believes will be 

necessary to defend the appeal and a reasonable hourly rate for those services.” Yowell 

v. Granite Operating Co., 620 S.W.3d 335, 355 (Tex. 2020). In this case, having already 

testified as to his familiarity with the reasonable charges for attorney’s fees in the locality 

and to his own hourly rate, Fields testified as to his opinion of what reasonable fees would 

be for the services “in the event there is an appeal” to this Court and the supreme court.

He further explained, “[T]hose amounts are quite a bit lower than I would normally 

estimate, but I am hoping that the work that has already been done during the posttrial 

briefing period will shorten the appellate process some.” His testimony was 

uncontroverted. The evidence was thus legally sufficient to support the award of appellate 

attorney’s fees. See State & Cty. Mut. Fire Ins. Co. v. Walker, 228 S.W.3d 404, 408–10 

(Tex. App.—Fort Worth 2007, no pet.) (holding there was sufficient evidence to support 

the award of appellate attorney’s fees when the attorney testified, without contradiction 
34

from opposing counsel, what he believed “a reasonable attorney’s fee would be for the 

services that would ‘necessarily need to be rendered’ in the event of an appeal”). Having 

rejected all of Salinas’s sub-issues, we overrule its last issue.

VI. CONCLUSION

We affirm the judgment of the trial court.

JAIME TIJERINA

Justice

Delivered and filed on the

25th day of April, 2024.