Affirmed and Opinion filed August 14, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-16-00686-CV

SCOTT VAN DYKE, Appellant 

V.

BUILDERS WEST, INC., Appellee 

On Appeal from the 113th District Court 

Harris County, Texas 

Trial Court Cause No. 2011-54019 

O P I N I O N 

Scott Van Dyke appeals from a final judgment favoring Builders West, Inc. 

Builders West sued Van Dyke for breach of contract, among other causes of action, 

for nonpayment on a home renovation project. Van Dyke counter-sued, alleging 

Builders West overcharged him and performed faulty work. A jury found for 

Builders West on all claims, and the trial court rendered judgment in accordance 

with the verdict, awarding actual damages of $321,368.12. The trial court 
2 

determined that reasonable fees for Builders West’s attorneys amounted to $590,750 

and awarded that sum to Builders West as well.

In his appeal, Van Dyke contends that (1) the evidence was legally and 

factually insufficient to sustain the jury’s finding that he breached the contract 

because Builders West failed to offer expert testimony that it performed certain 

electrical work in a good and workmanlike manner, (2) the trial court erred in 

refusing to instruct the jury regarding Builders West’s contractual duty to supervise 

the work of subcontractors, and (3) the trial court erred in awarding attorneys’ fees 

to Builders West at a rate of $500 per hour when Builders West’s contract with its 

attorneys required it to pay only $350 per hour unless it was awarded fees at the 

higher rate by the trial court. In a contingent cross-appeal, Builders West asserts that 

the trial court erred in refusing to award any fees for work performed by attorneys 

from a particular firm that represented Builders West. 

Because Van Dyke’s first two issues fail to address portions of the jury charge 

that support the judgment, we overrule those issues. In addition, we conclude that 

the trial court did not err in awarding attorneys’ fees to Builders West at the rate of 

$500 per hour because the relevant statute does not limit Builders West’s recovery 

to fees actually incurred. We therefore overrule Van Dyke’s third issue and need not 

address Builders West’s contingent cross-appeal. We affirm the trial court’s 

judgment. 

BACKGROUND

 In 2008, Van Dyke hired Builders West as general contractor on an extensive 

home renovation project. The parties’ one-page contract stated that Builders West 

would be paid for “labor and materials plus Contractor’s Fee of 20% to cover 

overhead, supervision, and profit.” The contract did not specify the scope of the work 

to be done or a total price to be paid but instead simply set forth hourly rates for 
3 

various subcontractors. 

 The project was to be completed in three phases. After several months of 

work, Van Dyke requested an estimate for completion of the first two phases, which 

Builders West provided. Eight months later, Van Dyke refused to pay invoices for 

work performed in August through November 2009. The unpaid invoices totaled 

$335,340.65. Van Dyke particularly complained regarding the amount charged for 

work done by electrical subcontractor Facilities Electric, Inc. (“FEI”). 

After negotiations proved fruitless, Builders West left the job and ultimately 

filed suit against Van Dyke for nonpayment of the invoices. Builders West’s causes 

of action included breach of contract, substantial performance, and quantum meruit. 

Van Dyke counter-sued, alleging breach of contract, violations of the Deceptive 

Trade Practices Act, and breaches of express and implied warranties. 

Key points of contention at trial concerned the nature of the “supervision” 

component of the contract and the sufficiency of Builders West’s performance of 

that component. Kurt Lobpries, a co-owner of Builders West, testified that he 

considered five percent of the amount paid under the contract to be for supervision. 

Day-to-day onsite supervision was actually provided by a carpenter on the job who 

was paid directly by Van Dyke and not by Builders West. There was evidence, 

however, that Lobpries acted as project manager, scheduling and coordinating the 

subcontractors’ work, occasionally making onsite inspections, and communicating 

with the onsite supervisor. 

Another significant dispute at trial concerned the quality of the electrical work 

performed by subcontractor FEI. Van Dyke called an expert witness to testify 

specifically regarding perceived deficiencies in the electrical work. Builders West 

defended the electrical work through several witnesses but did not call its own expert 

witness to testify on this subject. 
4 

At the conclusion of trial, the trial court submitted a 22-question charge to the 

jury that contained each of the causes of action listed above, along with various 

subsidiary issues. Because our disposition of Van Dyke’s first two issues turns on 

the structure of the charge, we explain that structure in some detail. 

Builders West’s claim for breach of contract was submitted in questions 1, 2, 

3, and 6. Question 1 asked whether Van Dyke failed to comply with the parties’ onepage agreement. Question 2 was contingent on a “yes” answer to question 1 and 

inquired whether Van Dyke’s failure to comply was excused by a prior failure to 

comply by Builders West. Question 3 asked whether the estimate Builders West 

provided regarding completion of phases 1 and 2 effectively modified the parties’ 

agreement. And question 6 was the damages submission for Builders West’s breach 

of contract claim. 

Van Dyke’s claim for breach of contract was submitted in questions 4, 5, and 

9. Question 4 asked whether Builders West failed to comply with the agreement. An 

instruction under question 4 informed the jury that Builders West was required to 

perform its obligations under the agreement “in a good and workmanlike manner.” 

As will be discussed in more detail below, it is important to note that question 2—

asking whether Van Dyke’s failure to comply was excused by Builders West’s prior 

noncompliance—did not contain a similar instruction. Additionally, Van Dyke 

objected to question 4—but not question 2—on the ground that it failed to instruct 

the jury regarding Builders West’s contractual duty to supervise the work of 

subcontractors. The trial court overruled the objection. Van Dyke did not object to 

question 2 on this ground. Question 5 was contingent on a “yes” answer to question 

4 and asked whether Builders West’s failure to comply was excused by various 

theories, including waiver, ratification, and acceptance of benefits. Question 9 was 

the damages submission for Van Dyke’s breach of contract claim. 
5 

Builders West’s claim of substantial performance was submitted in questions 

7 (“Did Builders West, Inc. substantially perform the Agreement?”) and 8 

(damages). Its claim of quantum meruit was submitted in questions 10 (“Did 

Builders West, Inc. perform compensable work for Scott Van Dyke for which it was 

not compensated?”) and 11 (damages). Van Dyke’s other claims (DTPA violations 

and breaches of warranties) were also submitted but play no role in this appeal. 

The jury found for Builders West on all claims, found against Van Dyke on 

his claims and defenses, and found damages to be $321,368.12 as to each of Builders 

West’s claims for breach of contract, substantial performance, and quantum meruit. 

The trial court subsequently awarded this amount to Builders West as actual 

damages in the judgment. 

 Builders West’s entitlement to attorneys’ fees was tried to the court by 

agreement. During the litigation, Builders West was represented by lawyers from 

two different law firms: Rusty Hardin & Associates (“RHA”), with which Builders 

West had a direct contractual relationship, and Langley & Banack, which was paid 

by Builders West’s insurer. In this phase of the trial, Van Dyke did not contest the 

reasonableness of the fees requested for RHA’s services. Instead, Van Dyke argued 

that such fees were not necessarily incurred at a rate of $500 per hour because 

Builders West’s contract with RHA only obligated Builders West to pay at the rate 

of $350 per hour unless the trial court awarded fees at the higher rate. The trial court 

awarded Builders West fees for the services of RHA calculated at the rate of $500 

per hour but did not award any fees for services performed by Langley & Banack. 

ANALYSIS

I. Van Dyke’s sufficiency challenge fails because the relevant parts of the 

charge did not require good and workmanlike performance. 

In his first issue, Van Dyke purports to challenge the legal and factual 
6 

sufficiency of the evidence to support Builders West’s recovery on its claim for 

breach of contract. We conclude that Van Dyke’s challenge fails for three reasons. 

First, although Van Dyke contends insufficient evidence was presented of good and 

workmanlike performance, the jury charge regarding this claim did not require that 

evidence. Second, even if Builders West failed to prove its claim for breach of 

contract, Van Dyke failed to challenge in his original brief two other jury findings 

that support the judgment. And third, in any event, Van Dyke’s argument does not 

undermine those other findings because the charge likewise did not require evidence 

of good and workmanlike performance to make those findings. 

A. The charge questions regarding Builders West’s claim for breach 

of contract did not require good and workmanlike performance. 

According to Van Dyke, Builders West could not prevail on its claim that Van 

Dyke breached the contract by nonpayment because Builders West did not establish 

through expert testimony that its electrical subcontractor, FEI, performed in a good 

and workmanlike manner. Van Dyke points out that a party to a contract generally 

is not permitted to recover for breach unless the party can establish that it tendered 

performance of its own obligations under the contract or was excused from doing 

so. See, e.g., Petroleum Workers Union of the Republic of Mex. v. Gomez, 503 

S.W.3d 9, 39 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (listing elements of 

cause of action for breach of contract). He further notes that home construction 

contracts typically are read to include an implied warranty that all work will be 

completed in a good and workmanlike manner. See, e.g., Gonzales v. Sw. Olshan 

Found. Repair Co., 400 S.W.3d 52, 56 (Tex. 2013) (explaining that the implied term 

is a “gap-filler” for when parties have not included their own terms regarding the 

quality of the work).1

 

1 Van Dyke additionally argues that expert testimony was necessary to aid the jury in 
7 

Although these statements of the law are generally correct, when a case is 

tried to a jury and the party complaining on appeal did not object to the charge, the 

sufficiency of the evidence is measured against the charge actually submitted, not 

some other law left unidentified in the charge. See Osterberg v. Peca, 12 S.W.3d 31, 

55 (Tex. 2000); Critical Path Res., Inc. v. Cuevas, No. 14-16-00036-CV, 2018 WL 

1532343, at *18, 26 (Tex. App.—Houston [14th Dist.] Mar. 29, 2018, no pet. h.). 

Here, none of the questions that comprised the submission of Builders West’s claim 

for breach of contract contained a requirement that Builders West prove its 

subcontractors’ work was done in a good and workmanlike manner, and Van Dyke 

did not object to the absence of such an instruction in these questions. 

To prevail on a claim for breach of contract, a party must establish the 

following elements: (1) a valid contract existed between the plaintiff and the 

defendant, (2) the plaintiff tendered performance or was excused from doing so, (3) 

the defendant breached the terms of the contract, and (4) the plaintiff sustained 

damages as a result of the defendant’s breach. Petroleum Workers, 503 S.W.3d at

39. The first element—the existence of a contract—was undisputed in this case. 

Question 1 asked whether Van Dyke breached the agreement. Question 2, which was 

contingent on an affirmative finding in response to question 1, addressed Builders 

West’s performance2

 and submitted Van Dyke’s defense of prior material breach by 

 

assessing the quality of the electrical work at issue, citing Schwartz v. City of San Antonio ex rel. 

City Public Service Board of San Antonio, No. 04-05-00132-CV, 2006 WL 285989, at *4 (Tex. 

App.—San Antonio Feb. 8, 2006, pet. denied) (mem. op.). Builders West disagrees. Because we 

conclude the jury charge did not require evidence that the electrical work was performed in a good 

and workmanlike manner, we need not address the circumstances in which expert testimony 

regarding the quality of electrical work is necessary. See generally FFE Transp. Servs., Inc. v. 

Fulgham, 154 S.W.3d 84, 90-91 (Tex. 2004) (explaining that whether a particular matter requires 

expert testimony is a question of law reviewed de novo). 

2 The jury also found in response to question 7 that Builders West substantially performed 

the agreement. Like question 2, question 7 included no instruction that Builders West and its 

subcontractors were required to perform in a good and workmanlike manner.
8 

asking whether Van Dyke’s failure to comply was excused by a prior failure to 

comply by Builders West.3

 Question 6, which was also contingent on an affirmative 

finding to question 1, asked about damages. As stated, none of these questions 

instructed the jury that Builders West and its subcontractors were required to 

perform in a good and workmanlike manner, and Van Dyke did not object regarding 

the absence of such an instruction.4 See generally Bayer Corp. v. DX Terminals, Ltd., 

214 S.W.3d 586, 602 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) 

(discussing preservation of error for charge complaints). 

The only question that inquired whether Builders West and its subcontractors 

performed in a good and workmanlike manner was question 4, which was part of the 

submission of Van Dyke’s claim that Builders West breached the contract. The jury 

answered “no” in response to question 4. Of course, this failure to find that Builders 

West and its subcontractors did not perform in a good and workmanlike manner does 

not amount to an affirmative finding that they did. E.g., Philadelphia Indemnity Ins. 

Co. v. White, 490 S.W.3d 468, 488 (Tex. 2016). But no such affirmative finding was 

required by the charge questions submitted without objection regarding Builders 

 

3 We note that the organization of the breach-of-contract portions of the charge and the 

wording of question 2 were not in keeping with the organization and wording recommended in the 

Texas Pattern Jury Charges. When faced with competing claims of breach, the Pattern Jury 

Charges recommend asking, in sequence, whether each party failed to comply with the agreement 

and then, if the jury answers “yes” to both of those questions, asking which party failed to comply 

first. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business 

PJC 101.2 cmt. (2016). Here, as explained in the text, the trial court presented the parties’ claims 

for breach of contract in two distinct sets of questions that do not intersect. Van Dyke did not 

object to this manner of submission or to the wording of question 2, nor does he specifically 

complain about them on appeal. See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 481 (Tex. 

2017) (“[A] defendant must preserve error by objecting when an independent theory of recovery 

is submitted defectively.”).

4 Cf. Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: 

Business PJC 101.2 cmt. (2016) (recommending inclusion of instructions when there is an 

obligation to perform in a good and workmanlike manner).
9 

West’s claim that Van Dyke breached the contract by failing to pay. 

Question 4 is not related to Builders West’s claim that Van Dyke breached the 

contract for several reasons. To begin with, question 4 is not made contingent upon 

or otherwise expressly tied to any of the questions concerning Builders West’s claim. 

Furthermore, question 4 does not contain any time element—i.e., it does not ask 

whether any breach by Builders West occurred prior to Van Dyke’s breach. In order 

for any breach by Builders West to have excused a breach by Van Dyke, Builders 

West’s breach must have occurred prior to Van Dyke’s breach. See Petroleum 

Workers, 503 S.W.3d at 39. In contrast, question 2 is expressly tied to other questions 

submitting Builders West’s claim that Van Dyke breached the contract, and it 

contains the requisite time element. 

In short, question 4 has no relevance to Builders West’s recovery for breach 

of contract, and question 2 did not require performance to be in a good and 

workmanlike manner. Because the charge questions submitting Builders West’s 

claim did not include a requirement of good and workmanlike performance, we may 

not consider that requirement in reviewing the sufficiency of the evidence to support 

the jury’s answers. We therefore reject Van Dyke’s argument that the evidence is 

insufficient because Builders West provided no expert testimony that FEI’s work 

was performed in a good and workmanlike manner.

B. Van Dyke’s opening brief does not challenge the jury’s findings for 

Builders West on its other claims. 

Even if Van Dyke were correct that Builders West provided insufficient 

evidence to support recovery for breach of contract, the judgment would still be 

supported by the jury’s findings on Builders West’s substantial performance and 

quantum meruit claims. Van Dyke did not challenge the jury’s affirmative findings 

on these claims in his opening brief. See, e.g., Miller v. Debo Homes, LLC, No. 14-
10

15-00004-CV, 2016 WL 5399507, at *3 (Tex. App.—Houston [14th Dist.] Sept. 27, 

2016, no pet.) (mem. op.) (affirming judgment supported by unchallenged, 

independent jury finding and on that basis overruling challenge to other jury 

findings); Aquarium Env’ts, Inc. v. Elgohary, No. 01–12–01169–CV, 2014 WL 

1778266, at *3 (Tex. App.—Houston [1st Dist.] May 1, 2014, pet. denied) (mem. 

op.) (holding any error in submitting DTPA claim was harmless where appellant did 

not challenge jury finding on breach of contract, which was an independent ground 

supporting liability and damages); see also Melartin v. CR & R, Inc., No. 14-05-

00519-CV, 2009 WL 972484, at *1 n.1 (Tex. App.—Houston [14th Dist.] Mar. 24, 

2009, no pet.) (mem. op.) (“We do not consider arguments raised for the first time 

in a reply brief.”). As stated above, the jury found the same amount of damages for 

all three claims. These unchallenged findings therefore support the judgment. See, 

e.g., Miller, 2016 WL 5399507, at *3; Aquarium Env’ts, 2014 WL 1778266, at *3.

C. The charge questions regarding Builders West’s other claims did 

not require good and workmanlike performance. 

In his reply brief, Van Dyke asserts that his arguments regarding Builders 

West’s claim for breach of contract also apply to its claims regarding substantial 

performance and quantum meruit. In support, he cites authority explaining that briefs 

should be construed liberally and the statement of an issue should be treated as 

covering every subsidiary question fairly included. See Tex. R. App. P. 38.1(f); 

Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012). Although we agree 

with these premises, we disagree that a challenge to Builders West’s success on its 

substantial performance and quantum meruit claims is fairly included in Van Dyke’s 

argument in his opening brief that “Builders West Could Not Prevail On Its Contract 

Claim . . . .” Yet even if we were to apply Van Dyke’s arguments in his opening 

brief to the jury’s substantial performance and quantum meruit findings, Van Dyke 

still could not obtain reversal of the judgment. 
11

As set forth above, Van Dyke’s argument under his first issue is that Builders 

West could not prevail on its claim for breach of contract because it did not provide 

expert evidence that FEI performed in a good and workmanlike manner. Neither the 

jury question regarding substantial performance (question 7) nor the question 

regarding quantum meruit (question 10) required proof of performance in a good 

and workmanlike manner, and Van Dyke did not object to these omissions in the 

trial court. Therefore, evidence of good and workmanlike performance is not 

necessary to support the jury’s answers to those questions. See Osterberg, 12 S.W.3d 

at 55 (“[I]t is the court’s charge, not some other unidentified law, that measures the 

sufficiency of the evidence when the opposing party fails to object to the charge”); 

see also Critical Path, 2018 WL 1532343, at *18, 26. For the foregoing reasons, we 

overrule Van Dyke’s first issue.

II. Van Dyke’s complaint of charge error in refusing to give an instruction 

does not affect the parts of the charge supporting the judgment. 

In his second issue, Van Dyke contends that the trial court erred in refusing to 

instruct the jury in question 4 regarding Builders West’s contractual duty to 

supervise the work of its subcontractors.5

 Van Dyke asserts that because the trial 

court instructed the jury in question 4 on the implied requirement that Builders West 

perform in a good and workmanlike manner but did not instruct the jury regarding 

the express obligation to supervise, it incorrectly suggested to the jury that poor work 

quality was the only permissible basis for finding that Builders West breached the 

contract. 

As explained in detail above, question 4 was part of the series of questions 

that submitted Van Dyke’s own claim that Builders West breached the contract. In 

 

5

 As mentioned, the parties’ contract stated that Builders West was to be paid for “labor 

and materials plus Contractor’s Fee of 20% to cover overhead, supervision, and profit” (emphasis 

added).
12

a post-submission letter brief, Van Dyke clarified that he is not appealing the portion 

of the judgment ordering that he take nothing on his affirmative causes of action; he 

is only appealing the part of the judgment awarding damages and attorneys’ fees to 

Builders West. Question 4 is not material to the award of damages and attorneys’ 

fees to Builders West. Accordingly, Van Dyke has expressly waived his second 

issue. Cf. Energy Maint. Servs. Gp. I, LLC v. Sandt, 401 S.W.3d 204, 221 (Tex. 

App.—Houston [14th Dist.] 2012, pet. denied) (giving effect to jury findings where 

appellants conceded in reply brief that they did not challenge the findings in their 

opening brief). 

We further note that the arguments Van Dyke makes in his second issue 

cannot be read as applying to question 2 of the jury charge, which submitted Van 

Dyke’s defense that Builders West had previously breached the contract. Van Dyke 

did not object to question 2 on this basis in the trial court, as he did to question 4, 

and he did not request that an instruction on supervision accompany question 2, as 

he did for question 4. See, e.g., Bayer Corp., 214 S.W.3d at 602 (discussing 

preservation of error for charge complaints). Moreover, question 2 did not instruct 

the jury regarding good and workmanlike performance, so it did not limit the bases 

on which the jury could have found a breach by Builders West. We overrule Van 

Dyke’s second issue. 

III. Builders West’s recovery of attorneys’ fees is not limited to the amount 

incurred.

In his third issue, Van Dyke challenges the trial court’s award of attorneys’ 

fees to Builders West at the rate of $500 per hour. In Texas, attorney’s fees are 

recoverable in litigation only if expressly authorized by a contract or statute. Tucker 

v. Thomas, 419 S.W.3d 292, 295 (Tex. 2013). In this case, Builders West sought fees 

pursuant to chapter 38 of the Texas Civil Practice and Remedies Code. Tex. Civ. 
13

Prac. & Rem. Code § 38.001-.006. Section 38.001 of that chapter provides, in 

relevant part, that “[a] person may recover reasonable attorney’s fees from an 

individual or corporation, in addition to the amount of a valid claim and costs, if the 

claim is for: (1) rendered services; (2) performed labor; (3) furnished material; . . . 

or (8) an oral or written contract.” Id. § 38.001. An award of attorney’s fees must be 

supported by evidence that the fees are reasonable and necessary for the prosecution 

of the suit. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). 

As mentioned above, Van Dyke does not contest the reasonableness of the 

fees awarded and he does not contest the necessity of the services performed; 

instead, he specifically complains only that Builders West did not actually incur fees 

at the rate of $500 per hour. In doing so, Van Dyke misreads the requirements for an 

award of attorneys’ fees under Chapter 38. 

Van Dyke’s argument is premised on language in the fee agreement between 

Builders West and RHA, one of the law firms representing it. This agreement 

contains the following paragraph explaining the hourly rate to be charged: 

Even though we are charging $500 per hour for our attorney time, we 

are agreeing to seek payment from Builders West for only $350 per 

hour. We will seek to have the jury and/or judge award Builders West 

the entire $500 per hour fee from Scott Van Dyke. If and when Builders 

West is awarded and paid more than $350 per hour for our legal fees, 

Builders West agrees to pay to RH&A any award for RH&A fees over 

$350 per hour, and $350 per hour will be apportioned to Builders West 

to make the company whole for those amounts already paid to RH&A. 

According to Van Dyke, he should not be required to pay fees at the $500 rate instead 

of the $350 rate because Builders West was not obligated to pay the higher rate 

unless it first received payment from Van Dyke for the higher amount. In other 

words, Van Dyke insists that because Builders West never incurred fees at the higher 

rate, it is only entitled to be awarded fees calculated at the lower rate. 
14

The parties do not cite, and we have not discovered, any Texas cases 

addressing a request for attorneys’ fees under a contract identical to the one 

presented here. In many contexts, however, Texas courts have held that a party 

entitled to attorneys’ fees need not show that the fees requested were actually 

incurred unless the statute authorizing a fee award requires such proof. See, e.g., 

Gluck v. Hadlock, No. 02–09–00411–CV, 2011 WL 944439, at *5 (Tex. App.—Fort 

Worth March 17, 2011, no pet.) (mem. op.) (affirming award of fees even though 

attorney agreed not to charge client); In re Estate of Johnson, 340 S.W.3d 769, 787 

(Tex. App.—San Antonio 2011, pet. denied) (holding party could recover fees even 

though its fees had been paid by a third-party trust); AMX Enters., L.L.P. v. Master 

Realty Corp., 283 S.W.3d 506, 517-21 (Tex. App.—Fort Worth 2009, no pet.) 

(affirming award under chapter 38 of in-house counsel fees based on market value 

and stating “proof of fees actually incurred or paid are not prerequisites to the 

recovery of attorney’s fees in Texas”); Brown v. Comm’n for Lawyer Discipline, 980 

S.W.2d 675, 683–84 (Tex. App.—San Antonio 1998, no writ) (holding state bar 

represented by private lawyers on a pro bono basis may recover reasonable 

attorneys’ fees); Beckstrom v. Gilmore, 886 S.W.2d 845, 847 (Tex. App.—Eastland 

1994, writ denied) (holding attorney representing himself pro se may recover fees 

under chapter 38); Tuberquia v. Jamison & Harris, No. A14–91–00055–CV, 1991 

WL 260344, at *2 (Tex. App.—Houston [14th Dist.] Dec. 12, 1991, no writ) (not 

designated for publication) (holding law firm represented by one of its own attorneys 

was entitled to recover attorney’s fees for the time and effort expended); cf. Cruz v. 

Van Sickle, 452 S.W.3d 503, 524 & n.36 (Tex. App.—Dallas 2014, pet. denied) 

(distinguishing Gluck, AMX, Brown, and Tuberquia because statute at issue 

expressly required that fees be incurred). 

In keeping with this precedent, we reject Van Dyke’s assertion that Builders 
15

West must have actually incurred fees at the higher rate in order to recover fees at 

that rate. Chapter 38 contains no such requirement.6

 Van Dyke also argues as a 

policy matter that permitting recovery under fee contracts such as that between 

Builders West and RHA would promote fee inflation and untether fees from market 

realities. But potential excesses in a contract such as this are held in check by the 

same requirements that have always held awards of attorney’s fees in check under 

Chapter 38: the fees must be proven reasonable and necessary for the prosecution of 

the suit. See Stewart Title, 822 S.W.2d at 10; Trevino v. City of Pearland, 531 

S.W.3d 290, 297 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Arthur 

Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (“[W]e 

cannot agree that the mere fact that a party and a lawyer have agreed to a contingent 

fee means that the fee arrangement is in and of itself reasonable.”); Classic C Homes, 

Inc. v. Homeowners Mgmt. Enterprises, Inc., No. 02-14-00243-CV, 2015 WL 

5461517, at *5 (Tex. App.—Fort Worth Sept. 17, 2015, no pet.) (making same point 

in case where fees were sought under Chapter 38). If Van Dyke deems those 

statutory checks insufficient, his recourse is to the Legislature, not this Court. 

Here, Van Dyke conceded that fees of $500 per hour were reasonable and that 

the work performed was necessary. See generally First Bank v. DTSG, Ltd., 472 

S.W.3d 1, 9 (Tex. App.—Houston [14th Dist.] 2015) (assessing evidence for a 

reasonable fee for the necessary services of party’s attorneys), rev’d on other 

grounds sub nom. First Bank v. Brumitt, 519 S.W.3d 95 (Tex. 2017); AMX Enters., 

283 S.W.3d at 520 (same). Because nothing more was required to support the trial 

 

6 We further note that because attorney’s fees under chapter 38 are not required to be 

incurred before being awarded, the trial court’s statement in the judgment that the fees were 

“incurred” is mere surplusage. See, e.g., Prime Tree & Landscaping Servs. v. Americon Servs. Co., 

No. 01-09-00779-CV, 2011 WL 947004, at *4 (Tex. App.—Houston [1st Dist.] Mar. 17, 2011, no 

pet.) (explaining that harmless surplusage does not affect validity of judgment).
16

court’s fee award, we overrule Van Dyke’s third issue. 

CONCLUSION

 Having overruled each of Van Dyke’s issues, we need not reach Builders 

West’s contingent cross-appeal. See Tex. R. App. P. 47.1. We affirm the trial court’s 

judgment. 

 

 /s/ J. Brett Busby

 Justice 

Panel consists of Justices Jamison, Busby, and Brown.