### 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

O P I N I O N

Wi c h it a Co u

n ty , Texas filed this appea l challeng ing the district co u r t’ s o r d e r d ir e c ti n g the County to pay $11,283.89 to Environmental Eng ineer ing & Geotec hnics, I nc. (EEG, a nonparty to the underly

ing suit) as “re asonable costs” for the production of documents in res ponse to the County ’s subpoena. See Tex. R. Civ. P. 205.3( f). I n two issues, the County challeng es the district court’s order : (1) ref

us i n g t o p er m it the County to conduct discovery as to the rea sonablene ss of EEG’s costs, and (2) awa

rding EEG $11,283.89 “base d upon the limit ed evidenc e prese nted” to the
court at the hear ing. For the rea son s t h at fo l l o w, we will aff irm the district court’s order in part,

reve rse a nd rende r in part, a

nd reve rse a

nd rema nd in part for

further proce eding s. BACK GR OUND I n the underly

ing suit, the County soug ht civil penalties under the Texas Water Code ag ainst Southwest Convenience Stores (SCS), a lleg ing that SCS was responsible for three leakingunderg round storag e tanks that polluted the g roundwa ter in Wichita County for over nineteen y ear s.

See Tex. Water Code § 7.351. The State of Texas appea red in the suit as a “neces s ar y and indispensable party ” under the W ater Code and aligned i t s el f wi t h the C ounty as a party plaintiff, reque sting a portion of all civil penalties awa rded in the case . See id

. §§ 7.353, .107. EEG was the environmenta l c o n s u lt a

nt for SCS betwee n 1997 and 2016 and was involved with the “South Be verly Site” wher e the tanks w ere located. E EG wa s not a party to the County ’s suit. The County serve d a subpoena on EEG reque sting production of documents rela ted to the South Be verly Site. EEG raised no objections to the County ’s re quests. EEG re sponded to the subpoena by providing the County with elec tronic copies of documents in a Dr o p Bo x fo lder. EEG also filed a motion for costs seeking to r ecoup costs associate d with its document production and set the motion for he aring without confer ring with the County

in violation of the local rules. At the start of the hear ing, the County announce d that it had not been consulted about the setting and that it was not rea dy to proce ed if EEG intended to prese nt witness testimony on the

m o t ion for costs. I f EEG intended to prese nt witnesses, the County reque sted the opportunity to depose them about the basis for the claimed costs of $13,916. The district court asked EEG whether it would prese nt witness testimony , and EEG responde d that it would. Having orig inally stated that it would g rant a continuance to the County if it was not rea dy to proce ed due to EEG’s failure to consult with the C ounty on a hearing date, the district court neverthele ss proce eded to conduct an evidentiar y hear ing. The onl y wi t n ess t o testify was EEG’s chief opera ting officer , Mark Owens. The only documents offe red into evidenc e wer e an invoice from EEG and two Offic e Depot rec eipts.

Owens t es t i fi ed that he rece ived a call from SCS ’s “parent company ” on April 20,

22018, asking whether he “ha d any information on a particular sit e,” a nd that he beg an re sear ching it. At the time of the call, he was not told whether the pare nt company had been sued, and he did not know whether t o expect service of a subpoena. Owens spe nt “proba bly half an hour” resea

rching from April 20 to April 25. He rec alled being serve d with the County ’s subpoena on April 25, 2018.

Owens te stified that he, EEG’ s executive vice pr esident, B ruce Br itten, and EEG’ s president/chie f executive office r, Kimberly Millette, conducte d the sear ch for documents perta ining
to the Sout h Be verly site beca use they would know what to look for and wher e to look for it and beca use EEG had no administrative staff. Owens noted that he was the only person who had been with EEG “the entire leng th of time that this [si te] was a projec t for the company .” Owens said that Br itten was involved with the site as the manag er of this projec t from 2007 to 2016. Owens focuse d his sear ch on “the stuff that preda ted [ Br itten] ,” but there was some overla pping ef fo rt , as Owens

rec alled “looking for some of the things that [Britten] was involved in, but [Britten] predominantly di d t h e s t u ff h e was in char g e of from 2007 [forward].” Owens stated that Millette, who was in char g e of “over all acc ounting functions and invoici n g ,” would have sear ched for all the pertinent

acc ounting rec ords. Owens testified that he took the responsive documents to Offic e Depot/Off ice Max for c opy ing a

nd scanning , and his wife r etrieve d the documents on May 7, 2018. An Off

ice 1 Depot re ceipt admitted into evidenc e shows that the Ma y 7 transac tion occurr ed at 11:20 a.m. During Owens’ s testimony , EEG off ere d into evidence its $13,916.95 invoi ce:

Although counsel and Owens ref err ed to Offic e Depot/Off

ice Max intercha

ng eably during 1 the hea ring , we r efe r only

to Office Depot for

consistency

. 34EEG’s counsel told the district court that the executives’ hourly rate s in the invoice wer e “their

normal billing rate [s] .” Owens acknow ledg ed that the invoice had “all the details, co s t[ s] of document production that [EEG w as] se eking to rec over,” and he a sked the district c ourt to a war d costs as set for

th in the invoice. 2 Acc ording to EEG’s invoice, all three EEG executi v es who billed their time for “docume nt production” list ed the same block of tim e from April 20, 2018, to May 23, 2018. The County arg ued to the district court that the invoice included dates befor e the service of the County ’s subpoena (on April 25) and afte r the last set of documents had been retrie ved from Offic e Depot (on May 7). Br itten billed time at his profe ssional g eolog ist rate starting April 20, but O wens testified that he d i d n o t k n o w whether Br itten “had any actua l time” betwee n April 20 and April 24. Simi l ar l y , alt houg h the invoice shows that Millette billed time at her “pre sident and CEO” rate starting April 20, Owens testified that Millette did not start billing her time o n that day

. Owens explained that “it was a block of time w e used from when I started to w hen I stopped working

. So that was kind of the block we used for ever y body .” EEG’s counse l handled delivery of the responsive documents to the C ounty , offe ring to provide t h em “on a CD or US B,” and forwar ded EEG’s invoice to the County

.

Owens denied having any rec ords of the EEG executives’ time aside from the totals listed on the invoice. He testified that they did not enter daily time rec ords or time sheets. He stated, “Not for a projec t like this. Only —just specific ally for the date.” Owens was unsure how much time

EEG produc ed the two r ece ipts from Offic e De pot for the f irst time at the hear ing. 2 5the three EEG executives incur red afte r May 7, when the last documents had been retrie ved, but it was “ not a lot.” He sa id that they would “g o throug h [t he boxes] when they came back.” As for his own time, Owens acknow ledg ed that the 22.5 hours repr esente d “the actua l hours that [he] put i n s ea rc h i n g for rec ords reque sted by the subpoena.” Owens testified that he billed the time spent sear ching for these rec ords at a profe ssional g eolog ist rate that he thought was appropr iate. The district court admitted the invoice into evidenc e over the County ’s objections that: (1) the invoice contained “hea rsay within hear say ” and (2) Owens did not have a “prope r foundation for testify ing about this.” I n arr iving a t EEG’s costs, the di strict court ex cluded the invoice’s line item for leg al fee s. See BASF Fina Petroche micals Ltd. P’ship v. H.B. Zachry Co. , 168 S.W .3d 867, 874 (Tex. App.—Houston [1st Dist.] 2004, p et. denied) (conc luding that “costs of production” under Rule 205.3(f) does not include attorney ’s fee s). The district court also deducte d the cost for hard copies that EEG never

provided to the County

. After the hear ing, the district court order ed the County to pa y EEG $11,283.89 (the differ ence betwee n the $13,916.95 that EEG claimed minus $2,000 in leg al fee s and minus $633.06 fo r h ar d copies not provided to the County ) within seven day s of the order as rea sonable cost s o f production. This calc ulation included the time block billed by EEG’s three executives in the invoice. The County nonsuited its claims ag ainst SCS without prejudic e and filed this appea l. EEG subsequently soug ht a show-ca use order ag ainst the County and its counsel or the county judge , but the di strict court declined t o enter t h o s e o rder s ex parte , concluding that it was “inappropria te” to do so and that the matter “should be noticed for hear ing.” EEG then filed a motion for contempt and sanctions with the district court, and the County filed an emer g ency motion in this Court to stay

6enfor ceme nt of t he order on costs. We issued an order st ay ing the enfor ceme nt of t he c o s t s order

and EEG’s motion for contempt and sanctions. W ic h it a Cty

. v. Environmental Eng’g & Geotec hnics, Inc ., No. 03-18-00434- CV, 2016 Tex. App. L EXI S 13931, at *1 (Tex. App.—Austin J uly 16, 2016, order ). DISCUSSIO N F irst issue: Re fu sal to perm it County to conduct discovery on EEG’s dem and f or cost s I n its first issue, the County challeng es the district court’s order “re fusing to permit” the County to conduct discovery as to the rea sonablene ss of EEG’s costs. Specifica lly , the County wanted to depose an E E G wi t ness befor e the district court’s hear ing on the motion for costs. Howeve r, the County did not obtain an adve rse r uling f rom the district court to pre serve this iss ue for appea l. See Tex. R. App. P. 33.1(a)

. First, the County never noticed the deposition of an EEG wi t ness. Second, the County did not reque st a continuance to depose an EEG witness befor e th e motion for costs was he ard. Thir d, the County did not rene w i ts announce ment of “not re ady ” for

an evidentiar

y hear ing when the district c ourt stated its intent to procee d with the hear ing or when Owens took the stand to testify in support of EEG’ s calc ulation of its costs for production of d ocuments. On this rec ord, we cannot conclude that the County has shown that the distric t co u rt ref used to permit discovery as to the rea sonablene ss of EEG’s costs. Acc ording ly , we overr ule the County ’s first issue. Second issu e: S u f

f i ci en cy o f evidence sup porting $1 1 , 2 8 3 . 8 9 a s “ re a s o n a b l e co s ts o f production” I n its second issue, the County challeng es the district court’s order awa rding $11,283.89 to EEG as rea sonable costs of production “base d upon the limit ed evidenc e prese nted”

7at the hear ing. Rule 205.3(f) states: “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)

. By order ing the County to pay EEG’s “rea sonable costs of production of $11,283.89,” the di s t ri ct court implicitl y found that the amount of costs EEG reque sted—excluding the leg al fee s and the costs of hard copies

never produce d—was re asonable

. Fa irly construed, the County ’s briefing and oral arg ument as to i t s s ec o n d issue challeng e both the leg al sufficie ncy and fa ct u al sufficie ncy of the evidenc e supporting the

rea sonablene ss of the costs in the district court’s order

. See Tex. R. App. P. 38.1(f) (providing that party ’s “state ment of an issue or point will be treated a s cover ing e very subsidiary

question that is fairly included”)

. The Texas Suprem e Court has “firmly mandated that courts broadly construe issues to encompa ss the core questions and to rea ch all issues subsidiary to and fairly included within them.” Rohrmoos Venture v. UTSW DVA He a l t h care, LL P , No. 16-0006, 2019 Tex. L EXI S 389,
at *14 (Tex. Apr. 26, 2019); see Majee d v. Hussain , No. 03-08-00679- CV, 2010 Tex. App. L EXI S 8477, at *25-26 (Tex. App.—Austin Oct. 22, 2010, no pet.) (mem. op.) (noting that brief must state concise ly all issues or points prese nted for revie w “which are to be trea ted as cover ing ever y subsidiary question that is fairly included”)

. Her e, a subsidiary issue challeng ing the fa ctual sufficie ncy of the evi d en ce i s fairly included in the County ’s fra ming of its second issue: that the
court err ed by awa

rding EEG $11,283.89 “base d upon the limit ed evidenc e prese nted” to the court at the hear ing and that the order “wa s not based upon suf fi cient evidenc e.” See Rohrmoos Venture , 2019 Tex. L EXI S 389, at *14; Majee d , 2010 Tex. App. L EXI S 8477, at *20-21 (conc ludi n g t h at party ’s no-e vidence and insuffic ient-evide nce a rg uments were sufficie ntly specific to preser

ve his

8leg al and fac tual sufficie ncy complaints) (empha sis added)

. The County ’s brief reque sted that this

Court reve rse the awa

rd of costs beca

use it was not based on sufficie nt evidenc e, and the County ’s counsel stated during oral arg ument that the rec ord shows EEG “incur red some costs from the 25th [of April] to the 7th [of May ].” He stated that this is “similar to an attorney ’s fee s case in which they don’t seg reg ate their fee s.” Such case s prese nt fac tual-suffic iency issues beca use unseg reg ated 3 attorney ’s fee s ar e s o m e evidence of what the seg reg ated amount should be. See Tony Gullo Motors I, L.P. v. Chapa , 212 S.W .3d 299, 314-15 (Tex. 2006)

. A subsidiary issue challeng ing the leg al sufficie ncy of the evidenc e is also fairly included in the County ’s briefing , complaining about the lack of evidenc e supporting the costs that EEG billed befor e the subpoena was serve d and afte r the last responsive documents wer e retrie ved. The County ’s counsel ref ere nced these two time intervals during oral arg ument: “Those specific s are challeng es to the leg al sufficie ncy . There ’s just

no evidence about why they should g et costs from April 20th to the 25th or past May 7th.” (Emphasis adde d.)

Sidestepping the County ’s subsidiary issue on the fac tual sufficie ncy of the evidenc e would be inconsistent with the County ’s briefing and our own prec edent. Cf. In re L.M.I. , 119 S.W .3d 707, 711 (Tex. 2003) (no t i n g t h at arg ument counsel had disavowed to court—unlike here —“wa s entirely consistent with” his statement of issue prese nted in his briefing ); Majee d , 2010 Tex. App. L EXI S 8477, at *20-21 (conc luding that party ’s arg uments that “[t] here is no evidenc e” and that “the evidenc e is insufficient” wer e sufficie ntly specific to prese rve party ’s complaints that

The dissent omits ref

ere nce to these statements by the County ’s counsel raising the fac tual- 3 sufficie ncy

subpoint and focuse s only on counsel’s state ment as to the leg al-suff iciency subpoint. 9“ther e was leg ally and fac tually insufficient evidenc e” to support cer tain el em en ts of plaintiff’s claim) (empha sis added) ; Crocker v. Attorney Gen. of Tex. , 3 S.W .3d 650, 653 (Tex. App.—Austin 1999, no pet.) (“A lthough [appellant] does not state whether he contests the l ega l or the fac tual sufficie ncy of t he evidence to support this finding, we construe his a rg ument as a challeng e to the fac tual sufficie ncy of the evidenc e.”)

. The dissent sug g ests that we should narr ow our revie w of the County ’s s ec o n d issue to exclude its fac tual-suffic iency subpoint based on relief that the County reque sted during oral arg ument for its leg al-suff iciency subpoint. The dissent also faults the County 4 for not specific ally reque sting a rema nd in its briefing , which soug ht reve rsal of the district court’s order awa rding costs “bec ause it is not based upon suff icient evidenc e.” Whether a party reque sts rema nd is immaterial i f t h e p ar ty is ultimately entitled to

reve rsal beca

use the party ’s pray er does not deter mine the dispositi on of a case . See Garza v. Cantu , 431 S.W .3d 96, 108-09 (Tex. App.—Houston [14t h Dist.] 2013, pet. denied) (noting that upon

reve rsal Texas Rule of Appellate Procedur e 43.3 allows for renditio n a n d r e ma nd, but “nowhe re does the rule sug g est that when a trial court’ s judgme nt should be reve rsed, we must instead aff irm it if the appellant fails to reque st the corr ect post-reve rsal dispositi on”); Ibrahim v. Y oung , 253 S.W .3d 790, 807 (Tex. App.—Eastland 2008, pet. denied) (conc luding that party ’s pray er seeking reve rsal and rema nd did not limit court’s authority to reve rse and rende r); see also Tex. R. App. P. 43.3(a)

. This Court has likewise r ejec ted the contention that a party waives any entitlement to a rema nd by

The case s cited to support this proposition involve relief that was not first reque sted from 4 the trial cour

t. Cf. Texas Parks & W

ildlif e De p’t v. Sawye r Tr. , 354 S.W .3d 384, 392 (Tex. 2011) (unpled comp ensation claim); State v. Brown , 262 S.W .3d 365, 370 (Tex. 2008) (unre quested sanctions). No suc h problem is prese nt here

. 10failing to reque st such relief in its brief. Majee d , 2010 Tex. App. L EXI S 8477, at *28-29. We stated

that a pray er omitti ng a reque st f or the appropr iate appe llate re medy , or re questing the wrong one, is the sort of briefing defe ct that a party should be permitted to cure or should have no impact on the appellate court’s judgme nt. Id

. And we held that an appellant’ s “omission of an expli cit pray er for

a rema nd in his appellant’ s brief does not waive his entitlement to suc h relief or limit our power to

awa rd it under rule 43.3 if we sustain any of [appellant’s] issues on appea l.” Id

. at *29. We decline
to disreg ard our own prec edent and unnece ssarily narr ow our revie w of the County ’s second issue.

Stand ard of review We must di scer

n the prope r standar d for r eviewing the reasonablene ss of an awar d of document-pr oduction costs that is larg ely the sum of three line items block billed by nonlawy ers. See Castro v. Precision Demolition LLC , Civil Action No. 3:15-CV-0213-D, 2017 U.S. Dist. L EXI S 2 0 5 3 5 5 , at * 16 (N.D. Tex. Dec

. 14, 2017) (noting that courts disfavor block billing beca use i t impairs as s essm ent of billing’s reasonable ness). To deter mine the correc t standard of revie w, we look fi rs t to the rule itself. See Bocquet v. Herring , 972 S.W .2d 19, 20 (Tex. 1998); Coronado v. Norman , 111 S.W .3d 838, 841 (Tex. App.—Eastland 2003, pet. denied) (“To deter mine the corr ect standard of

revie w, we look a

t the rule.” ). Rule 205.3(f) provides that “[a] party requiring production o f d o cu ments by a nonparty m ust reimburse the nonparty ’s rea sonable costs of production.” Tex. R. Civ. P. 205.3( f) (empha sis added)

. Rule 205.3(f) does not define the standard for revie wing a trial court’s ruling on the rea sonable costs of require d production of documents from a nonparty

. Howeve r, the rule does specify that such reimburse ment is mandatory —i.e., that the reque sting party “must reimburse ” the

11nonparty

—distinguishing this rule from other contexts in which a trial court may or may not make

an aw ard or

rea ch a c erta in conclusion. Id

. The dissent conclude s that an abuse- of-discr etion standard applies, rely ing in part on

case s in which attorney ’s fee s wer e awa rded as a deter

rent, penalty , or sanctions. I n those case s, the

awa rd of attorney ’s fee s followed a par ty ’s fa ilure to f

ile an answe r, noncompliance with sta tutory expert-re port require ments, and infring ement on another ’s ex er ci s e o f the rig ht to fre e speec h, petition, or association. See Tex. Civ. Prac. & Rem. Code §§ 27.009 (authorizing attorney ’s fee s

awa rds under Texas Citi zens Participation Act), 74.351(b) (authorizing attorney ’s fee s awa rds under Medica l L iability Act); Tex. R. Civ. P. 244 (authorizing fee s, taxed as costs, for attorney appointed for defa ulting defe ndant serve d by publication); Petroleum Sols., Inc. v. Head , 454 S.W .3d 482, 489 (Tex. 2014) (noting t h at i mpositi on of sanctions is revie wed under abuse- of-discr etion standard) ; Crites v. Colli ns , 284 S.W .3d 839, 840 (Te x . 2 0 0 9 ) (re cog nizi ng attorney ’s fee s awa rded under section 74.351(b)( 1) as sanctions). This is not a ca s e i n whi ch fee s or costs wer e imposed as a conseque nce of a party ’s failure to act or wrongdo i n g. EEG never contende d that the County ’s document reque st was improper and made no objecti o n to it. There is no rea son to penalize the County . The only purpose for awarding costs under Rule 205.3( f) is to “re imburse” the nonpa rty

. Tex. R. C iv. P. 205.3(f).

The dissent’s standard- of-r eview discussion also relies on case s i n wh i ch the authorizing statute makes an awa rd of attorney ’s fee s discretionar y . See, e.g. , Bocque t , 972 S.W .2d
at 21 (discre tionary awa

rd of fee s under Dec lara tory J udg ments Act in section 37.009 of Civil Practice & Remedies Code); Truck Ins. Exc h. v. Mid-Continent Cas. Co. , 320 S.W .3d 613, 623 (Tex.

12App.—Austin 2010, no pet.) (same) ; In re A.B.P. , 291 S.W .3d 91, 98 (Tex. App.—Dallas 2009, no

pet.) (discretionar

y awa rd of fee s in suit aff

ecting pare nt-child rela tionship u n d er section 106.002 of Family Code). Plainly , an abuse- of-discr etion standard applies when the authorizing statute itself makes an awa

rd of att orney ’s fee s discretionar y . See Bocque t , 972 S.W .2d at 20. That is not the

case under Rule 205.3( f), whic h require s reimburseme nt.

Fur ther, reimburse ment-amount decisions under Rule 205.3(f) are distinguishable from proc ed ural or trial-mana g ement decisions involving the admission of evidenc e, discovery sanctions, or attorney disqualification, indicating that we do not apply an abuse- of-discr etion standard. See In re Doe , 19 S.W .3d 249, 253 (Tex. 2000) (noting that abuse- of-discr etion standard applies when trial co u rt h as d iscretion either to g rant or deny relief based on its fac tual deter minations and ty

pically applies to proce dural or trial-mana g ement decisions such as admission of evidenc e, discovery sanctions, and attorney disqualification); Bocque t , 972 S.W .2d at 20-21 (conc luding that awa

rd of attorney ’s fee s under Dec lara tory J udg ments Act is discretionar y and apply ing multifacete d revie w of evidentiar y and discretionar

y matters); see also In re Shipman , 540 S.W .3d 562, 565 (Tex. 2018) (orig . proce eding ) (apply ing abuse- of-discr etion standard to r eview trial court’s order compelling discovery bey ond rules of civil proce dure)

. When a trial court makes

a finding under Rule 205.3 ab o u t wh at amount of costs are rea sonable, it makes a fac tual deter mination. See In re Doe , 19 S.W .3d at 253 (contra sting fac tual deter minati o n s fr o m ru lings requiring court to weig h policy considerations). “When the trial court acts primarily as a fac tfinder, appellate cour t s n o rm ally revie w its deter minations under the leg al and fac tual sufficie ncy standards.” Id

. (citing Bocque t , 972 S.W .2d at 21; Catali na v. Blasdel , 881 S.W .2d 295, 297 (Tex.

131994)); see Santos v. Texas Enters ., No. 03-09-00579- CV, 2010 Tex. App. L EXI S 8322, at *5 (Tex.

App.—Austin Oct. 15, 2010, no pet.) (mem. op.) (“We revie w a trial court’s deter mination reg arding the amount of attorney ’s fee s [under statute mandating them] for leg al and fac tual sufficie ncy of the

ev idence ”); Brazos Elec. Power Coop., Inc. v. W eber , 238 S.W .3d 582, 583 (Tex. App.

— Da l l as 2007, no pet.) (noting that statute mandated awar d of attorney ’s fees and that “[o] ur review of the trial court’s awar d, in turn, asks whether t here was sufficient evidence that the fees awarde d wer e in fac t re as o nable and nece ssary ”); Cox v. W ilkins , No. 03-05-00110-CV, 2006 Tex. App. L EXI S 2598, at *18 (Tex. App.—Austin Mar. 3 1 , 2 0 0 6 , p et. denied) (mem. op.) (noting that statute mandated awa

rd of attorney ’s fee s and that “we revie w the amount awa rded as attorney ’s fee s under

a sufficie ncy of the evidenc e standard” ); see also Barnes v. University Fed. Credit Union , No. 03-10- 00147-CV, 2013 Tex. App. L EXI S 4871, at *36 (Tex. App.—Austin Apr. 18, 2013, no pet.) (mem. op.) (“The standard of revie w for remitting excessive damag es, including excessive attorney s’ fee s, i s fa ctual sufficie ncy .”). For all these reasons, the case s cited by the di ssent should not gu i d e o u r discernme nt of the prope r standar d here

.

A factfinder ’s compensatory awa rd of nonpunitive costs, like the one we revie wed in CS Custom Homes, LL C v. Staf ford , No. 03-13-00315-CV, 2 0 1 5 Tex. App. L EXI S 9837 (Tex. App.—Austin Sept. 23, 2015, no pet.) (mem. op.), is more instructive in this context. I n Stafford ,

we reve rsed the fac tfinder’ s awa rd of expenses claimed by an eng ineer beca use his invoices—listing time billed, hourly ra t es , and total amount char g ed—provide d leg ally insufficient evidenc e of

rea sonable costs of repair. Id

. at *16-17. Whe n re viewing the award in that case , unlike in many attorney ’s fee s case s, ther e wa s n o b asis for imply ing the fac tfinder’ s familiarity with “usual and

14customary ” fe es or f or t aking judicial notice of the reasonablene ss of fees claimed by a pre vailing party

. See, e.g. , Tex. Civ. Prac. & Rem. Code §§ 38.001, .003; Smith v. Patrick W

. Y

. Tam Tr. , 296 S.W .3d 545, 547 (T ex . 2 0 09). The sole g aug e of the rea sonablene ss of the eng ineer ’s billing in Stafford —as with the profe ssional g eolog ists’ and CEO’s billing here —was the evidenc e prese nted
to the fac tfinder. 2015 Tex. App. L EXIS 9837, at *16 (noting that rec ord lacke d evidenc e from which fac tfinder could rea sonably discern that char g es in invoice—whe ther hourly rate , am o unts char g ed per task, or their total amount—wer e rea sonable amounts to pay eng ineer for service s he and his firm provided). We revie wed a challeng e to the evidenc e about the rea sonablene ss and nece ssity of the eng ineer ’s claimed expenses using a leg al-suff iciency standard. Id

. at *13-14. Simi larly here , we will re view the r easona bleness of the $11,283.89 awa rd of doc ument-produc tion costs to EEG for l egal and fac tual sufficie ncy . See In re Doe , 19 S.W .3d at 253 (“When the trial court acts primarily as a fac tfin d er , appellate courts normally revie w its deter minations under the leg al and fac tual sufficie ncy

standards.” (citing Bocque t , 972 S.W .2d at 21; Catali na , 881 S.W .2d at 297)). When, as here , no finding s of fac t or conclusions of law are reque sted or filed, we imply all finding s that are nece ssary to support the trial court’s ruling and supported by the evidenc e. BMC Software Belg., N.V. v. Marchand , 83 S.W .3d 789, 795 (Tex. 2002); W orford v. Stamper , 801 S

. W.2d 108, 109 (Tex. 1990). Be cause this appellate rec ord includes the repor ter’s and cle rk ’s

rec ords, the trial court’s implied finding s are not conclusive and may be challeng ed for leg al and fac tual sufficie ncy . See BMC Software , 83 S.W .3d at 795. Even finding s as to w itness c redibility
must be rea sonable, and a fac tfinder is not fre e to believe testimony that is conclusively neg ated by undisputed fac ts. City of Keller v. W ilson , 168 S.W .3d 802, 820 (Tex. 2005). We apply the same

15standards of revie w to the trial court’s implied finding s that we apply when revie wing the leg al and

f a c tu a l s ufficie ncy of evidenc e supporting a jury ’s verdic t. MBM Fin. Corp. v. W oodlands Operat in

g Co. , 292 S.W .3d 660, 663 n.3 (Tex. 2009) (citing Catali na , 881 S.W .2d at 297).

A movant who, like EEG, asser ts a rig ht to some active relief on his own behalf bear s the burden of proving his rig ht to that relief

. See Pace Corp. v. Jack

son , 284 S.W .2d 340, 350 (Tex. 1955) (“ [I ]f one party

is asserting a rig ht to damag es or some othe r ac tive relief in his own behalf , the burden of proving his rig ht to that relief still rests upon him.”). When a party challeng es the leg al sufficie ncy of an adver se finding on an issue on which it d i d n o t h av e the burden of proof, as the County does here , the party must demonstrate that there is no evidenc e to sup p o rt t h e adver se finding

. Exx on Corp. v. Emerald Oi l & Ga s Co. , 348 S.W .3d 194, 215 (Tex. 2011). Evidence is leg ally sufficie nt if it would enable rea sonable and fair- minded people to rea ch t h e v er d ict under revie w. Id

. (citing City of Keller , 168 S.W .3d at 827). We cre dit favor able evidenc e if a rea sonable fac tfinder could do so and disreg ard contra ry evidenc e unless a rea sonable fac tfinder could not. Id

. We sustain a no-evide nce c halleng e only if: (1) the r ecor d reve als a complete absenc e of evidenc e of a vital fac t; (2) we are barr ed by rules o f l aw o r o f ev i d ence from g iving weig ht to the only evidenc e offe red to pr ove a vital f act; (3) the evidenc e offe red to pr ove a vital f act is no more than a mere scinti lla; or (4) the evidence establishes conclusively the oppos ite of t he vit al fact. City of Keller , 168 S.W .3d at 810, 822.

When a party challeng es the fac tual sufficie ncy of an adver se finding on an issue on which he did not have the burden of proof, he must demonstrate that the finding is so contra ry to the

overw helming weig ht of the evidenc e as to be clea rly wr ong and manifestly unjust. See Cain v.

16Bain , 709 S.W .2d 175, 176 (Tex. 1986). I n revie wing a finding for fac tual sufficie ncy , we examine

the entire rec ord, considering the evidenc e in fa vor of a nd contra ry to the challeng ed finding

. See id

. We must not mere ly substitut e our judgme nt for that of the trier of fac t. Golden Eagle Archery , Inc. v. Jack

son , 116 S.W .3d 757, 761 (T ex . 2 003). I f we deter mine the evidenc e is fac tually insufficient, we must detail the evidenc e rele vant to the issue and explain how the contra ry evidenc e g rea tly outweig hs the evidenc e in support of the challeng ed finding

. Id .; see also W indrum v. Kareh , No. 17-0328, 2019 Tex. L EXI S 52, at *45-46 (T ex. J an. 25, 2019). We consider the leg alsufficie ncy challeng e first. See W indrum , 2019 Tex. L EXI S 52, at *44 (citing Glover v. Texas Gen. Indem . Co. , 619 S.W .2d 400, 401-02 (Tex. 1981) ), and noting that court of appea ls or dinarily will not addre ss fac tual sufficie ncy of evide nce if

it determines evide nce is leg ally insufficient). No evidence of “re asonab le costs of production” b efore subpoena s erve d I n this case , the starting point for d e te r mi n in g E E G ’ s “ r e a s o n able costs of production” in response to the County ’s subpoena under R u l e 2 0 5.3 is no ear lier than April 25, 2018, the undisputed date of service of the subpoena. As we have noted, Rule 205.3(f) provides 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)

. EEG contends that the require d document production “cost what it cost.” We disag ree .

By its terms, Rule 205.3(f) does not allow reimburse ment for just an y ex p ense cl ai med by a nonparty ; rathe r, repa y ment to a nonparty is restric ted to the rea sonable co s t s o f “re quir[ed] production of documents.” Id

. & cmt

. (noting that under this rule, party may subpoena nonparty ’s productio n o f d o c u me n ts ) ; s e e BASF Fina Petroche micals Ltd. P’ship , 168 S.W .3d at 874

17(excluding rec overy of attorney ’s fee s from “costs of production” under Rule 205.3(f) ); see also St.

Luke’s Episcopal Hosp. v. Garc ia , No. 14-96-00928- CV, 1996 Tex. App. L EXI S 5893, at *10-11 (Tex. App.—Houston [14t h Dist.] Aug

. 9, 1996, orig

. proce eding ) (addr essing prior rule g overning subpoenas for do cu m ents in Rule 177a and noting that rule provided relief from “subpoena s requiring the rec ipient to expend some amount of money in copy ing costs”). Owens testified at the hear ing tha

t he did not know whether to expect a subpoena

befor e Apr il 25, 2018:
Q. Okay

. And y ou wer e serve d with the subpoena on April 25th. How is it that y ou beg an wor

k on 4/20 versus the da te that y ou rec eived it? A. I received a phone call from my client or—it’s a pare nt company to Southwest Convenience Stores, reg arding if I had any i nformation on a particula r site. And, y ou know, it was two y ear s old so I wasn’t s u re , so I initiated some initial looking into the files at that point. And that was April 20th. Q. So is t hat when y ou lear ned y ou wer e g oing to be serve d with a subpoena ? A. No. I didn’t know for sure one way or another

. That was just a question that perta ined to this sit e.

. . . . Q. Okay . Did y our client tell y ou in that call that they had bee n sued? A. No. Not in that call.

Neve rtheless, as we have noted, all three EEG executives who bi lled their t ime for “docume nt production” listed a block of time beg inning April 20, 2018—five day s befor e the service of the County ’s subpoena. Recove rable costs under Rule 205.3(f) —proper ly considere d within the whole of the provisions in Rule 205 and not in isolati o n

— ar e for the “re quir[ed] production of

18docum en t s , ” i.e., document production compelled by the subpoena. Tex. R. Civ. P. 205.3(a)

(allowing party to compel p ro d uction of documents from nonparty by subpoena) , (d) (re quiring nonpar t y t o re s p ond to subpoena as require d by Rule 176.6), (f) (manda ting reimburse ment of

rea sonable costs of production of documents to nonparty require d to produce them); Heritage on the San Gabriel Homeowne rs Ass’n v. Texas Comm’n of Envtl. Quality , 393 S.W .3d 4 1 7 , 4 2 5 (Tex. App.—Austin 2012, pet. denied) (“We consider rules as a whole rathe r than considering their provisions in isol ation.”). We do not for eclose the possibilit y that a nonparty might incur c osts of production in rea sonable anticipation of service of a subpoen a. But on this rec ord, Owens’ s testimony confirms that costs billed befor e service of the subpoena April 25, 2018, wer e not incurre d beca use the County was “re quiring production of documents” from EEG; rathe r they wer e costs of responding to an inquiry from EEG’s client. See Tex. R. Civ

. P

. 205.3(a) ,(f) ; Garcia , 1996 Tex. Ap p . L EXI S 5893, at *10-11 (noting that prior Rule 177 g overning subpoenas for d o cu m en t s provided relief from “subpoena s requiring the rec ipient to expend some amount of money in copy ing costs”); cf. City of Hous. v. Maguire Oil Co. , 342 S. W

. 3 d 726, 749 (Tex. App.—Houston [14t h Di s t.] 2011, pet. denied) (re jecting claim t hat phot ocopy ing expenses wer e court costs and n o t i n g that party “did not establish that its photocopy expenses wer e attributable to responding to document reque sts from the City as opposed to g ener al copy costs in litigation”)

. EEG prese nted no evidenc e showing that any costs billed befor e April 25 wer e incurre d bec au s e t h e C ounty was “re quiring production of doc uments” fr om EEG. Cf. Tex. R. C iv. P. 205.3(a), (d) , (f)

.

The district cou rt m ade no express finding that costs billed befor e April 25 wer e incurre d beca

use the County was “re quiring production of documents” from EEG, and we may not

19imply that finding beca use it is unsupported by the undisputed evidenc e in this rec ord. See City of Keller , 168 S.W .3d at 820; BMC Software , 83 S.W .3d at 795. Ow en s testified that he spent “proba bly half an hour” rese arc hing fr o m Ap ri l 20 to April 25 befor e service of the subpoena. Br itten also billed “docume nt production” time using his profe ssional g eolog ist rate for dates befor e the subpoena was serve d, but Owens was unable to state whether Br itte n “h ad any actua l time” betwee n April 20 and Apr il 24. 5

Even when the evidenc e in this rec ord is considere d in the light most favor able to the implied finding that the $11,293.89 of costs EEG reque sted was rea sonable an d cre diting the evidenc e supporting that implied finding , a rea sonable fac tfinder could not disreg ard that there was

no evidenc e showing that EEG i n cu rr ed any costs befor e April 25, 2018, due to the County “re quiring production of documents” from EEG. See Exx on , 348 S.W .3d at 215 (citing City of Keller , 168 S.W .3d at 827). Acc ording ly , we conclude that EEG did not meet its burden to provide the district c ourt with le g ally sufficie nt evidenc e supporting its implied finding that the rea sonable

co sts of comply ing with the County ’s subpoena for documents—inclusive of billing for d at es p re ce d i n g service of the County ’s subpoena on April 25—was $11,293.89. See Tex. R. Civ. P

. 205.3(f) ; Exx on , 348 S.W .3d at 215; City of Keller , 168 S.W .3d at 827. EEG was not entitled to at least half a

n hour of time that it billed and that the district cour t awar ded in its order. 6

As EEG’s counsel acknow ledg ed at oral arg ument,“ther e is nothing in the rec ord that tells 5 us one way or the other” whether Br itten’s char g es for his time wer e for work befor e the subpoena was ser ved. The total overbilled amount for that half hour is $92.50, calc ulated as .5 hour at Owens’ s 6 rate of $185.00 per hour. As we have noted, Br itten also billed for time spent on document production befor e the date of service of the subpoena, but whether he actua lly did any work during that time is unknown. 20Insu ff icient evidence of “reasonable costs of production” after sub poena serve d The County acknow ledg es that this rec ord contains evidenc e showing that EEG incurre d some costs from April 25 to May 7. But it contends that EEG did not meet it s burden of showing that the full amount of its claimed costs during that time was rea sonable, i.e., that the evidenc e supporting the awa rded amount of EEG’s costs is not fac tually sufficie nt. The County specific ally contends that “[t] he court err ed in awa rding EEG for the time its profe ssionals claim that they spent on this matter.”

I n support of its “re asonable costs of production” under Rule 205.3, EEG prese nted the County and the district court with an invoice totaling $13,916.95. Fr om that invoice, the district court deducted amounts based on EEG ’s i m p roper claim of attorney ’s fees and its claim for costs of hard copies never produce d to the County

. Those ded u ct i o n s ref lect the district court’s deter mination that the invoice listi ng the amounts EEG billed did not itself show the rea sonablene ss of those amounts. Even afte r those deductions, the evidenc e showing th at E EG did not prove

rea sonable costs of production totaling $11,283.89 g rea tly outweig hs the evid en ce s u p porting the implied finding that the full amount of such costs was shown to be “re asonable costs of production.” See W indrum , 2019 Tex. L EXI S 52, at *45-46; Golden Eagle Arc hery , 116 S.W .3d at 761. The cate g ories of costs rema ining afte r the district court’s deduct i o n s for the disallowed attorney ’s fee s and hard copies wer e: (1) the costs for scanning documents done by Offic e Depot, and (2) the invoice’s block billing for three EEG executives under the heading of “docume nt production.” As to the first cate g ory , EEG prese nted the district c ourt with itemized rec eipts from

21Offic e Depot showing that EEG incurre d costs for scanning documents totaling $3,711.39. Thus, 7 there is some evidenc e that EEG incurre d this amount as “re asona b l e costs of production” afte r service of the County ’s subpoena. But as to the second cate g ory , the evidenc e EEG prese nted to the district court for the document production underta ken by its three executives did not support the full amount of the c laimed costs.

Owens testified on direc t examination that the entirety of his 22.5 hours invoiced to the County

wer e spent sea

rching for r ecor ds reque sted by

the subpoena : Q. Ag ain, y ou have 22.5 hours. I s that the actua l h o u rs t h at y ou put in on—sear ching for r ecor ds reque sted by the subpoena ? A. Yes. I t may

be a little low, but y es. That’ s—y eah.

No t h i n g in the rec ord ref lects that Owens was “sea rching ” for rec ords reque sted by the Cou n t y

an y time afte r May 7, 2018, at 11:20 a.m., when his wife retrie ved the last set of responsive documents from Offic e Depot and EEG paid the “fina l bill.” EEG’s counsel handled the subsequent delivery of those documents to the County

. Owens did not testify that he spent any time afte r May 7, 2018, sear ching for rec ords reque sted by the subpoena. Whatever he may have done to incur costs of production for EEG for six teen day s from May 7 throug h May 23 is not ref lected in the invoice. 8

The scanning costs consisted of four char ges : $ 1 , 5 00.00 and $1,070.00 for reg ular 7 document scanning and $448.50 and $361.79 for “ hand” sc anning plus sales taxes of $175.60 and $155.50. Owens testified that he was told hand scanning was nece ssary for hard- copy photogr aphs. Owens testified that he did not hire an assistant beca use he was “g oing to be the one that 8 has t o say that we found all our docume nts and prese nted them all, so I need to be in the l oop” on the document sear ch. Contrary to the di ssent’s s ug g estion, this t es timony —in proper context—is no evidenc e of how Owens ( or any one else ) spent the time that wa s block billed after May 7. 22The invoice was the only basis for the amounts billed by Br itten and Millette. Owens

testified that none of the three EEG executives trac ked his or her time for this kind of projec t in daily

rec ords or time sheets, “[o] nly —just specific ally for the date.” The specific dates in the invoice wer e inacc urate . The invoi ce showed t hat t he three EEG executives used the same overinc lusive set of dates for their billing in the invoice , relying on “a block of time .

. . from whe n [Owens] st arte d to when [Owens] stopped working .” As we have noted, Owens’ s ref ere nced block of time from April 2 0 t o M ay 23 was im proper ly based on time that he bil led before the service of t he sub p o en a an d time that he did not claim to have spe nt “sea rching ” for

responsive doc uments. The only testimony

as to amounts billed after May 7 (whe n the last documents had been retrie ved), was Owens’ s g ener alization that “we ’d go t hroug h [t he box es] when they came back” and that it was “not a lot.” The only documentar y evidenc e of the executives’ billing was the invoice, and it off

ers no a ssistance in showing the re asonable ness of a ny amount of costs incurr ed for six teen day s afte r the last s et o f d o cu m en ts wer e retrie ved. Owens acknow ledg ed that the 9 invoice had “all the details, cost[s] of document production that [EEG was] seeking to rec over,” and that all of his billed time i n t h e i n v oice was spent sear ching for rec ords. No evidenc e exis ts that Owens bill ed the County

for a ny time spent review ing the documents that had a lrea dy been found

Owens testified that the executives’ time rec ords wer e “[o] nly —jus t specific ally for the 9 date.” Ba sed on the dates in the i n voice, EEG’s six teen- day period of costs claimed afte r the documents wer e found and retrie ved (included within EEG’s block-billed time from April 20 to May 23) is longe r than the twelve total day s, at most, that EEG could have spent finding those documents. See Castro v. Precision Demolition LLC , Civil Action No. 3:15-CV-0213-D, 2017 U.S. Dist. L EXI S 205355, at *16 (N.D. Tex. Dec

. 14, 2017) (stating that courts disf av or block billing beca

use it impairs assessment of billing ’s re asonable ness). 23and no evide nce exi sts that EEG performe d any task for the County fre e of c harg e. We may not 1 0 imply finding s otherwise that would be unsupported by this rec ord. See City of Keller , 168 S.W .3d at 820; BMC Software , 83 S.W .3d at 795.

On this rec ord, the evidenc e that EEG did not meet its burden of proving $11,283.89

as its rea sonable co s t s o f production—inclusive of billing dates befor e April 25 and afte r May 7—g rea tly outweig hs the evidenc e supporting the district court’s implied finding that EEG proved the full amount of such costs as rea sonable costs of production. See W indrum , 2019 Tex. L EXI S 52,
at *45-46; Golden Eagle Archery , 116 S.W .3d at 761. The only cost of production supported by leg ally and fac tually sufficie nt evidenc e in the court below is the cost for scannin g d ocuments totaling $3,711.39. Acc ording ly , afte r examining all of the rec ord and considering the evidenc e in fav o r of and contra

ry to the district court’s implied finding that EEG proved rea sonable costs of production totali ng $11,283.89, we conclude that such implied finding is so contra ry to the

overw helming weig ht of the evidenc e as to be clea rly wrong and manifestly unjust. See Cain , 709 S.W .2d at 176. We sustain the County ’s sec ond issue.

We have found no ca s es addre ssing the proper dispositi on of an appea l when a nonparty prese nts insufficient evidenc e to support the full amount of its awa rd under Rule 205.3(f)

. I n other co n t exts , when insufficient evidenc e is prese nted t o support the full amount of an awa rd, the Texas Supreme Court has sometimes rema nded the case to the court o f ap p ea l s to consider sug g esting remittitur and, at other times, rema nded the case to the trial court for rec onsideration of the awa rd. See, e.g. , Rohrmoos Venture , 2019 Tex. L EXI S 389, at *79 (re versing court of appea ls’

The likelihood that EEG donated any of its executives’ time to the County is also dispelled 1 0 by EEG’s a ssertion that it sought re cover y for doc ument production that “c ost what it cost.” 24judgme nt as to attorney ’s fee s awa rd beca use rec ord failed to provide requisite detail s s u p p o r ting that

awa rd and rema

nding cause to trial court for rede termination of fee s); Kinsel v. Lindsey , 526 S.W .3d 411, 428 (Tex. 2017) (af firming court o f ap p ea l s’ judgme nt rema nding cause to trial court for

rec onsideration of attorney ’s fee s awa rd afte r noting that failu re to seg reg ate attorney ’s fee s—betwee n claims for which fee s are rec overa ble and c laims for which the y are not—does not prec lude rec overy of att o rn ey ’s fee s); Guev ara v. Ferrer , 247 S.W .3d 662, 670 (Tex. 2007) (re manding to court of appea ls to c onsider remittitur afte r concluding that there was leg ally sufficie nt evidenc e that medical ex penses were caus al ly rela ted t o acc ident but leg ally insufficient evidence
to prove which medical conditions g ener ated all medical ex penses or whether acc ident ca u s ed all such conditions and expenses of trea tment); Chapa , 212 S.W .3d at 313-15 (re manding cause to court of appea ls afte r noting that “[u] nseg reg ated attorney ’s fee s for the entire case are some evidenc e of what the seg reg ated amo u nt should be” and cautioning that unrec overa ble fee s are not rende red

rec overa ble “mer ely beca

use they are nominal”); Minnesota Mining & Mfg. Co. v. Nishika Ltd. , 953 S.W .2d 733, 740 (Tex. 1997) (“When supported by leg ally sufficie nt evidenc e, an u n seg reg ated damag es awa

rd—whe ther in the form of at t o rney ’s fee s or actua l damag es—ordinar ily require s a

rema nd.”); see also Enzo Invs., L.P. v. W hite , 468 S.W .3d 635, 654-55 (Tex. App.—Houston [14t h Dist] 2015, pet. denied) (modify ing judgme nt as to attorney ’s fee s following remittitur and aff irming judgme nt as modified).

I n analog ous case s involving lump-sum fee awa rds based on char g es from multipl e attorney s, wher e some attorney s provided sufficie nt proof of their fee s but others did not, courts have parse d the components of the awa rd base d on the sufficie ncy of the proof from eac h attorney

. See

25City of Laredo v. Montano , 414 S.W .3d 731, 736-37 (Tex. 2013) (af firming cou rt o f appea ls’ judgme n t as to part of awa rd attributable to one attorney who provided leg ally and fac tually sufficie nt evidenc e of her fee s but reve rsing part of awa rd attributable t o another attorney who provided no doc umentation of his time and remanding case to trial court for further proce eding s); Enzo Invs. , 468 S.W .3d at 654-55 (modify ing judgme nt following remittitur and aff irming judgme nt

as modified afte r concluding that evidenc e was leg ally insufficient to support full amount of attorney ’s fees awarde d beca use of one attorney ’s def

icient af fidavit but concluding that evidenc e

was leg ally sufficie nt to support reduc ed amount of awa rd based on two other attorney s’ aff idavits). Simi larly here , the evidenc e is insufficient to support the full amount of $11,283.89 awa rded to EEG

as rea sonable costs of production of documents in response to the Count y ’s subpoena, g iven the overinc lusive time that EEG billed befor e service of the subpoena an d after the documents had alre ady been found, copied, and retrie ved. See Tex. R. Civ. P. 205.3(f)

. Bu t the evidenc e is sufficie nt to support a portion of those costs of production totaling $3,711.39, which is the sum of
costs for scanning documents b y Of fice Depot that was included in the i nvoice to the C ounty and supported at the he aring with two Office Depot re ceipts admitted into evidenc e. See id

.

We conclude that rema

nd i s re quired as to Owens’ s, Br itten’s, and Millette’s respe ctive portions of the costs of production in the district court’s order

. See Montano , 414 S.W .3d
at 736-37; Enzo Invs. , 468 S.W .3d at 654-55; see also Tex. R. App. P. 43.3(a) (“When reve rsing a trial court’s judgme nt, the court must rende r the judgme nt that the trial court should have rende red, except when . . . a

rema nd is nece ssary

for f urther pr ocee dings[.]”).

26CONCLUSION We have conclude d that the evidenc e is in s u fficie nt to support the full amount of $11,283.89 awa

rded to EEG as rea sonable costs of p roduction of documents require d by the County ’s subpoena but that sufficie nt evidenc e supports costs totaling $3,711.39. See Tex. R. Civ. P. 205.3(f)

. Acc ording ly , we: (1) aff irm the portion of the district court’s order direc ting the County
to pay EEG’s scanning expense totaling $3,711.39 as a rea sonable cost of production of documents require d by the County ’s subpoena; (2) reve rse the portion of the district court’s order direc ting the County to pay EEG $92.50 and rende r judgme n t t h at E EG take nothing for the block-billed time spent prior to April 25, 2018; and (3) reve rse the rema ining portion of the dis t ri ct co urt’s order direc ting the County to pay EEG $7 , 4 8 0

. 0 0 fo r the ex ecutives’ block-billed t ime and remand t his

cause for f

urther pr ocee dings c onsistent with thi s opinion.

__________________________________________ Gisela D. Tr iana, Justi ce

Be fore J ustices Goodwin, B aker , and Tria na Concurring and Dissenting Opinion by J ustice Goodwin Affir med in Part; Reverse d and Rende red in Part; Reve rsed a nd Remanded in Part Filed: May

31, 2019

27