 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
[W] Toshiba Machine Co. v. SPM Flow Control6/2/2005
urt. SPM argues that this third provision contemplates a fee higher than the flat $150,000 plus 5%, contingent upon whether the trial court awarded attorney's fees.
Searcy testified that the services his firm rendered to SPM had a lodestar value of $667,114. He then testified that a reasonable fee would be $1.5 million. To support a reasonable fee in excess of the lodestar value, Searcy testified at length about the rule 1.04 elements. Most significantly, Searcy testified that the risk his firm took of losing the case and receiving nothing over its $150,000 base fee justified the $1.5 million fee. He also testified that the lodestar value would represent a reasonable fee if SPM had paid his firm on a monthly basis; but since his firm had to wait until the conclusion of the case to collect its fee, the lodestar value was insufficient. Finally, Searcy testified that $1.5 million represented about 25% of the jury's verdict---significantly less than the 30%-50% typically charged by Tarrant County attorneys in contingent fee cases.
The trial court made findings of fact and conclusions of law that specifically took into account the rule 1.04 factors. The trial court found that the following attorney's fees were reasonable: $1.5 million through the date of judgment, plus $200,000 if Toshiba is unsuccessful in this appeal, plus $35,000 if Toshiba files a petition for review with the Supreme Court of Texas and the petition is denied, or $65,000 if the Supreme Court grants the petition but rules against Toshiba on the merits. The trial court incorporated these fees into its judgment.
Toshiba lodges two complaints about SPM's attorney's fees. First, Toshiba contends that SPM is not entitled to any award of attorney's fees because SPM did not prevail on its breach of contract claim. We have already concluded that SPM may recover for breach of contract; therefore, SPM may also recover its reasonable attorney's fees. See Tex. Civ. Prac. & Rem. Code Ann. ยง 38.001.
Second, Toshiba argues that the trial court erred by awarding more than the lodestar amount. To support this argument, Toshiba cites Dague, 505 U.S. at 557, 112 S.Ct. at 2638, and PPG Industries, Inc. v. JMB/Houston Centers Partners Ltd. P'ship, 41 S.W.3d 270 (Tex. App.---Houston [14th Dist.] 2001, no pet.), rev'd on other grounds, 146 S.W.3d 79 (Tex. 2004). The question in Dague was whether the attorney's fees shifting provisions of the federal Solid Waste Disposal Act and Clean Water Act permitted "enhancement" of lodestar attorney's fees where the attorney's fees were contingent. Dague at 559, 112 S.Ct. at 2639. The Supreme Court held that such enhancement was not permitted under the statutes in question. Id. at 567, 112 S.Ct. at 2648. Since this case involves neither of those statutes, Dague offers little guidance and imposes no restrictions here. Moreover, Texas courts consistently allow the use of a multiplier based upon the contingent nature of a fee under Texas statutes allowing recovery of attorney's fees. Dillard Dept. Stores, Inc. v. Gonzales, 72 S.W.3d 398, 413 (Tex. App.---El Paso 2002, pet. denied).
Nor is Toshiba's argument supported by PPG Industries. In that DTPA case, the trial court awarded a "bonus" of $300,000 on top of the plaintiff's lodestar attorney's fee. PPG Indus. 41 S.W.3d at 285. The court of appeals held that the trial court had no authority to consider the result obtained as a basis for awarding the bonus against the defendant. Id. But the court went on to affirm the bonus because there was some evidence, besides the result obtained, to show that the attorney's fee, including the bonus, was reasonable. Id. The court concluded that the trial court had not abused its discretion
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|