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No. 04-13-00550-CV

IN THE COURT OF APPEALS

FOURTH COURT OF APPEALS JUDICIAL DISTRICT

SAN ANTONIO, TEXAS

RANDY K. SMITH, 

Appellant/Defendant, 

vs.

LAWRENCE REID, ROYCE REID, JENNIFER HEATH, AND THL GP

INC., 

Appellees/Plaintiffs.

__________________________________________ 

APPELLANT’S REPLY IN SUPPORT OF MOTION FOR 

REHEARING/RECONSIDERATION EN BANC

TO THE HONORABLE COURT:

Appellant Randy K. Smith presents this short reply to address 

two points raised by Appellees’ responsive briefing.

A. Appellee’s focus on the lack of an objection to fee 

segregation is a nonstarter because the parties voluntarily

submitted the fees evidence in segregated form.

Appellees argue Smith waived his challenge to the sufficiency 

of the attorney’s fees award by failing to object to fee segregation.1

 

1Appellees also make a half-hearted attempt to argue that Smith waived his 

attorney’s fees complaint based on inadequate briefing. Resp. at 8. It is 

noteworthy that Appellees made this same argument to the Panel in Appellees’ 

ACCEPTED

04-13-00550-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

3/23/2015 11:48:47 AM

KEITH HOTTLE

CLERK
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The Panel Opinion noted this omission, stating: “Itemized invoices 

were presented in support of the entire amount awarded 

($79,171.30), and Smith lodged no objection to the evidence at trial. 

Thus, Smith has waived his segregation complaint on appeal.” Op. 

at 20.

However, this “segregation waiver” is a red herring. Smith does 

not complain of a lack of segregation. Indeed, the record shows that 

the parties voluntarily segregated their fees, explaining to the trial 

court the percentage of time spent on each of the claims. (3RR94)

(Appellees counsel stating, “I have also done a lot of thinking about 

how that time [hours of attorney’s fees] was spent,” before breaking 

down the total amount of fees requested into percentages based on 

 

original briefing, despite the over 100 pages of briefing provided by Smith to 

this Court addressing Smith’s complaints on appeal. Not surprisingly, 

Appellees’ waiver arguments went unmentioned by the Panel in the issued 

opinion. Smith suspects this omission occurred because the briefing provided 

by Smith was clear and thorough, comprising both citation to authority and 

the record, including the judgment, the fact findings, the conclusions of law, 

and the evidence submitted by the parties. Smith Opening Br. & Reply Br. 

Indeed, Smith’s briefing was sufficient enough to warrant a 21-page Opinion 

from this Court. This Court should summarily reject Appellees’ waiver 

contention because Smith’s briefing resoundingly complies with preservation of 

appellate complaint rules and sufficiently raised Smith’s challenge to the 

amount of attorney’s fees awarded. See TEX. R. APP. P. 38.1(i) (requiring brief to 

contain clear and concise argument for the contentions made with appropriate 

citations to authorities); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 

S.W.2d 279, 284 (Tex.1994) (discussing “long-standing rule” that issue may be 

waived due to inadequate briefing).
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the varying causes of action). Thus, there was no need for an 

objection to a failure to segregate by either party. Appellees point to 

no case law requiring a segregation objection when the evidence is 

already submitted in a segregated format.

The simple fact is that, in this case, the Judgment and the 

Findings of Fact say it all. The Judgment demonstrates the trial 

court awarded fees under only one cause of action: Chapter 38

(breach of contract). (3CR642) (“Under the discretionary powers of 

the Court to award attorney’s fees under Chapter 38, the Plaintiffs 

are awarded attorney’s fees . . . “) (emphasis added). 

Although Appellees, on Rehearing, argue that the trial court’s 

use of the word “discretionary” may indicate an intent to award fees 

for the Declaratory Judgment action (Chapter 37),2 the Findings of 

Fact resolve any questions that remain unanswered. Specifically, 

the Findings of Fact corroborate Smith’s position that the Judgment 

intended to award attorney’s fees based, not on the attorney’s fees, 

 

2Even if this Court follows Appellees’ position to its logical conclusion, the

attorney’s fees award must be reduced. Even if Appellees are correct that the 

trial court intended to award fees under Chapter 37, which Smith strongly 

disagrees with based on the express language in the Findings of Fact tying the 

attorney’s fees to the breach of covenant claim, this Court must nonetheless 

reduce the fees based on the segregation percentages testified to by Appellees’

trial counsel. (3RR94) (Appellees’ counsel testified that only 30% of the 

attorney’s fees were incurred seeking “declarations”).
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but instead based on the breach of covenant claim. (3CR660) (The 

FoF provide: “The agreement between RT Craig and Jay A. Blalock, 

dated July 27, 1937, is an express covenant by Smith’s 

predecessors in title Not to Claim Land by Adverse Possession. 

Smith, in asserting a claim for adverse possession to land, breached 

such express covenant, and in so breaching, Smith is liable for 

attorney’s fees and costs under section 38.001 of the Texas Civil 

Practice and Remedies Code.”). 

The record tells this Court that only 10% of the attorney’s fees 

were accrued on the cause of action elected by the trial court.

Appellees’ attorney testified that 10% of the attorney’s fees were 

incurred in relation to Smith’s claim of adverse possession to the 

“Bubble.” (3RR94). The remaining 90% of Appellees’ fees were 

incurred for unrelated legal issues, some of which were abandoned 

before trial (30%), defending against the 2011 County Road 

Resolution (30%), and Appellees’ “affirmative claims . . . the request 

for the TRO, the request for declarations, the boundary, defending 

the easement by estoppel and defending against the legal effect of 

the court-related items that were admitted a few minutes ago, the 
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'78 statement and the '98 actions of the commissioners court.”

(30%). (3RR94). 

Significantly, both parties used the same break down of 

percentages when segregated what amount of fees were incurred for 

each percentage of the case. (3RR98) (“In regard to the allocation of 

time spent, I agree that Mr. Davis’ number in regard to the 10 

percent is a good number on the amount of time and effort that was 

spent on the adverse possession, the adverse possession claims.”).

Thus, arguing there was a “waiver” for failing to object to a lack of 

segregation when the parties voluntarily segregated their fees is 

perplexing and should be summarily ignored by this Court.

B. Appellees have never disputed that only 10% of attorney’s 

fees was spent on the breach of covenant claim.

As detailed above, Appellees affirmatively testified that only 

10% of all fees were incurred in prosecuting their breach of 

covenant claim. (3RR94). Smith has pointed this fact out over and 

over again in the briefing to this Court. Appellees have never 

disputed this testimony. Instead, Appellees argue they are “entitled” 

to 100% of the fees because they also prevailed on other claims.

This argument, however, ignores the fact that the trial court 
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only awarded fees based on one claim – the Chapter 38 claim.

(3CR642 (Judgment); 3CR660 (FoF)). The trial court was clear in its 

Judgment and its Findings of Fact that the award of attorney’s fees 

was tied to the finding of liability against Smith for breach of 

covenant. Id. To argue otherwise ignores the plain language of the 

Judgment and the Findings of Fact. Id. Here, Appellees testified in 

open court, under oath, (3RR90), that only 10% of the fees were 

accrued for the breach of covenant claim. (3RR94). They cannot 

now just “take back” that sworn testimony.

Thus, if this Court determines that Appellees’ breach of 

covenant claim falls within Chapter 38, then the most attorney’s 

fees that Appellees may be awarded based on the evidence 

submitted is 10% of the amount sought: $8,761.33. (3RR91-93).

This Court has modified judgments to reflect reduced amounts 

before and should consider doing so in this case. See Bill Miller BarB-Q Enterprises, Ltd. v. Gonzales, No. 04-04-00747-CV, 2005 WL 

2176079, *3 & n.3 (Tex. App. -- San Antonio 2005, pet. denied)

(unpublished) (holding evidence legally insufficient to support 

entirety of award [$50,000], but reducing award to amount 

supported by evidence[$24,000]). 
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CONCLUSION

Smith respectfully requests this Court grant this Motion for En 

Banc reconsideration, withdraw the Panel Opinion, and issue a new 

Opinion either vacating the award of attorney’s fees altogether or, at 

a minimum, modifying the award to remove the excess attorney’s 

fees from the award to ensure that the amount of attorney’s fees 

awarded comports with the evidence submitted at trial. 

Respectfully submitted,

KELLER STOLARCZYK PLLC

234 West Bandera Road, 

No. 120

Boerne, Texas 78006

Telephone: 830.981.5000

Facsimile: 888.293.8580

By: /s/Kimberly S. Keller

Kimberly S. Keller

SBN: 24014182

Email: kim@kellsto.com

Shane J. Stolarczyk

SBN: 24033242

Counsel for Appellant

CERTIFICATE OF SERVICE

I certify that Appellant’s Reply to Motion for En Banc 

Reconsideration was served on those listed below on March 23, 

2015 via this Court’s e-filing system and email/facsimile: 
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Joe M. Davis

THE DAVIS LAW FIRM

P.O. Box 2349

Boerne, Texas 78006

Stephan B. Rogers

ROGERS & MOORE, PLLC

309 Waters St., Suite 114

Boerne, TX 78006

 /s/Kimberly S. Keller

 Kimberly S. Keller