In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-25-00364-CV
MELISSA HOLLMANN AND SCOT HOLLMANN, Appellants
V.
VAN SHAW, Appellee
On Appeal from the 236th District Court
Tarrant County, Texas
Trial Court No. 236-267402-13
Before Kerr, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Courts presume that the Legislature “understands and correctly
appreciates the needs of its own people, that its laws are directed to
problems made manifest by experience, and that its discriminations are
based upon adequate grounds.” The wisdom or expediency of a law is for
the Legislature to determine, not this Court.
Enron Corp. v. Spring Ind. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996) (citations omitted).
This is an appeal from a final judgment after a bench trial. This case has been
ongoing since 2013 with a long and convoluted history. In short, Appellants Melissa
and Scott Hollmann (the Hollmanns) were judgment creditors of Paul Kramer and PK
Industries d/b/a Castlegate Homes. To satisfy their judgment against Kramer
(underlying judgment), the Hollmanns sought to recover funds owed to him from his
former employer, Poly America, LP (PA). Appellee (Shaw) had a competing claim to
PA’s funds owed to Kramer. PA interpleaded the funds (interpleaded funds) into the
registry of the court. The trial court ultimately entered judgment that Shaw recover on
his claim for the interpleaded funds. Because the trial court found that the Hollmanns’
underlying judgment upon which their claim was based had become dormant, and also
because they failed to prosecute their claim for the interpleaded funds with due
diligence, the court rendered judgment that the Hollmanns recover nothing on their
claim for the interpleaded funds. The trial court also awarded trial and conditional
appellate attorney’s fees to Shaw from the Hollmanns under Texas Civil Practice and
Remedies Code Section 37.009 (TDJA), denied the Hollmanns their request for
attorney’s fees under the TDJA, and assessed court costs against the Hollmanns. We
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will affirm the trial court’s judgment except that we (1) will modify the judgment to
carry 7.5 percent post judgment interest instead of 8.5 percent and (2) will reverse the
attorney’s fee award to Shaw and remand that issue to the trial court to determine a just
and equitable fee when properly segregated.
A. Background
Because of the lengthy history of this case, we will set out only those matters
pertinent to our disposition of the case. This case was originally filed on August 13,
2013, by Shaw against PA as an application for writ of garnishment claiming that PA
owed monies to Kramer under a noncompete agreement and that Kramer owed Shaw
money pursuant to a default judgment that Shaw had acquired. Another party, David
Bell, intervened on October 24, 2013, claiming an interest in those same funds held by
PA,1 while Shaw nonsuited his application for writ of garnishment on the same day.
The Hollmanns intervened in the case on November 11, 2013, claiming to have a
judgment dated April 25, 2011, against Kramer in the amount of $695,986.95 plus
postjudgment interest at five percent. The Hollmanns claimed that they should recover
the funds owed by PA to Kramer in satisfaction of their judgment debt, asked for a writ
of garnishment of the funds owed by PA to Kramer, and made liability claims against
Kramer and his company, PK Industries, Inc.
1
Bell alleged that Shaw had assigned to him the default judgment that Shaw had acquired.
3
As of March 7, 2017, PA, having previously deposited $120,000 into the registry
of the court, interpleaded an additional sum of $240,000, disclaimed any interest in these
funds, and asked the court to determine to whom the funds should be distributed. No
writs of garnishment or attachment were ever issued against PA or the interpleaded
funds.
Thereafter, Bell and Kramer2 nonsuited their claims against the interpleaded
funds, leaving only the Hollmans seeking distribution of the interpleaded funds. On
June 4, 2019, Shaw, who was still in the case as a defendant to claims raised against him
by the Hollmanns, counterclaimed against the Hollmanns asserting various causes of
action, including a claim for declaratory relief that the interpleaded funds were rightfully
his by virtue of an earlier note and assignment from Kramer. He also sought recovery
of attorney’s fees. Shaw’s crossclaim against Kramer for recovery on a debt owed to
him by Kramer was also still pending.
With this background established, we will focus directly on the matters related
to this appeal—the trial court’s granting of summary judgment for Shaw against Kramer
on Shaw’s debt claim against Kramer, the court’s denial of the Hollmanns’ claim to the
interpleaded funds, the factual sufficiency of the proof of Shaw’s attorney’s fees due to
segregation problems, and the judgment interest rate.
Kramer had asserted claims against PA.
2
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1. Shaw’s Summary Judgment Against Kramer
Shaw’s summary judgment motion against Kramer was based on his crossaction
filed on June 2, 2014. In that crossclaim, Shaw alleged in bare conclusory fashion that
he had loaned Kramer money that had not been repaid as required, constituting a breach
of contract resulting in injury to Shaw. He sought recovery of attorney’s fees for
prosecution and collection of the debt claim. Nowhere in the crossclaim did Shaw assert
a claim for declaratory judgment or attorney’s fees under the TDJA against anyone.
In his summary judgment motion, Shaw contended that Kramer had judicially
admitted in certain of his pleadings the existence of the loan note, the principal amount
of $200,000, and the interest rate of 10 percent per annum. Shaw’s affidavit established
that the loan remained unpaid and that the outstanding indebtedness as of April 1,
2024 was $465,000. Shaw also contended that Kramer admitted that the note assigned
the PA noncompete payments (interpleaded funds) owed to Kramer to Shaw for the
loan repayment. Shaw contended that the Hollmanns had no standing to contest the
note since they were strangers to the transaction.
The Hollmanns filed a response to Shaw’s motion for summary judgment. The
Hollmanns contended that the motion sought recovery beyond recovery on the note,
meaning recovery of the interpleaded funds. They further contended that the note in
question was owed by Paul Kramer Construction LLP, not Paul Kramer, individually,
whereas the funds in the court registry were owed to Paul Kramer, individually, and the
note did not assign those payments in satisfaction of the LLP’s note. Finally, without
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citing legal authority, the Hollmanns addressed Shaw’s objection that they did not have
standing to oppose the summary judgment motion. They argued that they had standing
because the parties were competing for the interpleaded funds and defeating the
summary judgment would benefit their claim to the funds. The Hollmanns also
objected to the admissibility of the evidence relied upon in the summary judgment
motion. The response did not raise limitations as a defense.
Shaw replied. In addition to providing legal authorities to support his position,
he pointed out that Kramer had guaranteed the LLC’s loan and that the assignment of
the PA noncompete payments was part of the repayment terms of the loan. Shaw also
raised the dormancy of the Hollmanns’ underlying judgment to argue that they had no
enforceable claim to the interpleaded funds.
By order dated February 6, 2025, the trial court granted Shaw’s Motion for
Summary Judgment Regarding His Claim Against Paul Kramer, ordering judgment for
Shaw against Kramer for $465,000, plus postjudgment interest as allowed by law. The
order did not specify any reasons for the ruling, did not address attorney’s fees, did not
rule on any evidentiary objections, and did not address claims for declaratory relief or
disposition of the interpleaded funds.
2. Trial Court’s Denial of Hollmanns’ Claim to Interpleaded Funds
At the time of trial, the Hollmanns’ live pleadings were (1) Eighth Amended
Petition Consisting of Their Request for Distribution to Them of the Funds Currently
in The Registry of This Court or Other Equitable Relief as Respects Such Funds, and
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(2) Answer to Shaw’s Second Amended Counterclaim and Request for Declaratory
Relief. Shaw’s live pleadings at trial were (1) Second Amended Counterclaim and
Request for Declaratory Relief and (2) Answer to Plaintiffs’ Seventh Amended Petition.
a. The Hollmanns’ Trial Pleadings
In their Eighth Amended Petition, the Hollmanns sought recovery of the
interpleaded funds because they were funds that had been owed to Kramer, against
whom they had their underlying judgment. They also sought declaratory relief that Shaw
was not entitled to the interpleaded funds because, they alleged, Kramer’s note to Shaw
and the assignment of the Kramer noncompete payments to Shaw were “bogus, and
the agreement is void or voidable and of no force and effect.” The Hollmanns also
alleged that the “necessary prerequisites” to allow Shaw a valid claim to the interpleaded
funds had not been satisfied. Finally, they sought recovery of their attorney’s fees
although no specific statutory basis was stated.
The Hollmanns’ Answer to Shaw’s Second Amended Counterclaim and Request
for Declaratory Relief included a general denial and the following “affirmative
defenses”: Shaw’s alleged promissory note referenced in his Second Amended
Counterclaim is invalid, bogus, and of no force and effect as to the interpleaded funds;
Shaw’s claims are barred by the statute of limitations or laches; Shaw’s tortious
interference with contract/judgment claim is non-actionable; Kramer’s assignment to
Shaw was unenforceable, voidable, or void; the Hollmanns’ actions taken in court to
collect on their underlying judgment were privileged and justified; the Hollmanns’
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position regarding the interpleaded funds is that of a superior financial interest as to
Shaw; estoppel; attorney’s fees under the TDJA; and Shaw lacked capacity to challenge
the Hollmanns’ right to the interpleaded funds under Texas Civil Practice and Remedies
Code Sections 34.001 and 31.006.
b. Shaw’s Trial Pleadings
In Shaw’s Second Amended Counterclaim and Request for Declaratory Relief,
Shaw alleged that he had loaned Kramer monies on various occasions. In particular,
Shaw had loaned Kramer Construction Group, LLC the sum of $200,000, which
Kramer had fully guaranteed individually. Additionally, Kramer individually executed a
promissory note to Shaw for $200,000. Shaw alleged that both notes were due, owing,
and unpaid and that the interpleaded funds should be paid to him to satisfy Kramer’s
debt. Shaw further alleged that the Hollmanns had tortiously interfered with his
contract with Kramer and his entitlement to collect the monies owed him from the
interpleaded funds, seeking unspecified damages. Shaw also alleged that the Hollmanns
were engaged in a “Continuing Tort” by making “frivolous and groundless claims
against [him] for purposes of harassment and other improper motives.” He additionally
sought declaratory relief that: (1) the interpleaded funds rightfully belonged to him;
(2) the underlying judgment relied upon by the Hollmanns to support their claim to the
interpleaded funds had become legally dormant and unenforceable; (3) Kramer’s
assignment of the PA payments/monies (interpleaded funds) to Shaw was part of a
promissory note and is not subordinate to or subject to any priority of the Hollmanns,
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or alternatively, the interpleaded funds rightfully belong to Shaw for repayment of the
$200,000 loan; (4) the Hollmanns failed to prosecute their lawsuit with diligence,
entitling Shaw to dismissal of all claims for want of prosecution; (5) the Hollmanns have
no claims against Shaw or anyone else in their Eighth Amended Petition and are not
entitled to any remedy asserted in such petition; and (6) such other declarations as are
required and equitable related to the foregoing declarative requests. Shaw requested
actual, compensatory, and exemplary damages in addition to the interpleaded funds.
Finally, he sought recovery of attorney’s fees for trial and appeal.
In his Answer to Plaintiffs’ Seventh Amended Petition, Shaw pled a general
denial. He raised the following “affirmative defenses”: (1) the Hollmanns’ failure to
prosecute their claim with reasonable diligence requires dismissal for want of
prosecution; (2) the Hollmanns’ claims are barred by Texas Civil Practice and Remedies
Code Section 34.001; (3) the Hollmanns’ claims are barred by Texas Civil Practice and
Remedies Code Section 31.006, as any judgment upon which they claim has been
extinguished or waived, is dormant, and was not timely revived; and (4) the Hollmanns’
claims are barred by limitations, waiver, estoppel, laches, unclean hands, contributory
negligence, release, failure of conditions precedent, and fraud. Shaw also sought relief
under Texas Civil Practice and Remedies Code Section 10.001, et seq. for the
Hollmanns’ litigating for the last ten years for an improper purpose, including to harass
or cause unnecessary delay or to needlessly increase the costs of litigation, seeking a
take-nothing judgment against the Hollmanns, court costs, and attorney’s fees.
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3. Factual Sufficiency of the Proof of Shaw’s Attorney’s Fees Due to
Segregation Problems
Shaw’s lawyer provided the only evidence of his attorneys’ fees. While his
qualifications were not disputed, the Hollmanns contend that the court’s award of
attorneys’ fees was not just or equitable because, in part, the fees were not segregated
between causes of action for which recovery is authorized and those for which such
recovery is not authorized.
4. Interest Rate
The Final Judgment provided for postjudgment interest at 8.5 percent. The
Hollmanns contend that the proper rate should be 7.5 percent.
5. Judgment Denying Hollman Claims 3
a. Denial of Claim to Interpleaded Funds
Whether enforcement of a judgment is barred as dormant by Texas Civil Practice
and Remedies Code Section 34.001 is a question of law that we review de novo. Abrams
v. Salinas, 467 S.W.3d 606, 609, 611 (Tex. App.—San Antonio 2015, no pet.). Likewise,
whether a party’s effort to collect on a judgment constitutes a “writ of execution” under
Section 34.001 is a question of law that we review de novo. Keith M. Jensen, P.C. v. Briggs,
We need not address Hollmanns’ issues regarding the trial court’s alternative
3
ground of dismissal for want of prosecution because of our affirmance of the trial court’s take-nothing judgment based on dormancy of the Hollmanns’ underlying judgment. See Tex. R. App. P. 47.1.
10
No. 02-14-00096-CV, 2015 WL 1407357, at *2 (Tex. App.—Fort Worth Mar. 26, 2015,
no pet.) (mem. op.).
b. Denial of Recovery of Attorney’s Fees under TDJA
Under the TDJA a trial court has the discretion to award a nonprevailing party
its costs and reasonable and necessary attorney’s fees as are equitable and just. Severs v.
Mira Vista Homeowners Ass’n, Inc., 559 S.W.3d 684, 712 (Tex. App.—Fort Worth 2018,
pet. denied). We review a trial court’s ruling under the TDJA regarding attorney’s fees
for an abuse of discretion. Id. Reasonableness and necessity of attorney’s fees are
questions of fact, whereas the question of whether to award attorney’s fees as equitable
and just is a question of law. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Comm’rs
Ct. of Wise Cnty. v. Mastropiero, No. 02-22-00383-CV, 2023 WL 3017941, at *4 (Tex.
App.—Fort Worth Apr. 20, 2023, no pet.) (mem. op.); see Rohrmoos Venture v. UTSW
DVA Healthcare, LLP, 578 S.W.3d 469, 493–94 (Tex. 2019) (discussing factors to
consider in determining reasonableness and necessity of attorney’s fees). Whether it is
just and equitable to award attorney’s fees depends not on direct proof but on the
concept of fairness in light of all the circumstances of the case. Ridge Oil Co., Inc. v. Guinn
Invs., Inc., 148 S.W.3d 143, 162 (Tex. 2004).
In determining whether the evidence is sufficient to support the trial court’s
exercise of discretion, we consider (1) if the trial court had sufficient information upon
which to exercise its discretion, to which we apply the legal and factual sufficiency
standards of review, and (2) if the trial court erred in its application of that discretion,
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i.e., whether, based on the evidence before it, the trial court made a reasonable decision.
Mastropiero, 2023 WL 3017941, at *4. It is an abuse of discretion for a trial court to rule
arbitrarily, unreasonably, or without regard to guiding legal principles. Bocquet,
972 S.W.2d at 21. A trial court does not abuse its discretion when its ruling is based on
conflicting evidence and some evidence of substantive and probative character supports
its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Mastropiero,
2023 WL 3017941, at *4.
6. Judgment Granting Recovery of Shaw’s Attorney’s Fees
Since Shaw’s award of attorney’s fees was also based on the TDJA, the same
standards of review apply to his award, so we will not repeat them. We will, however,
address the concept of segregation. Where a claimant seeks recovery on multiple causes
of action, some of which allow for recovery of attorney’s fees and some of which do
not, the claimant has the burden to segregate those fees for which recovery is allowed
from those for which no recovery is allowed. Jackson Walker, LLP v. Kinsel, 518 S.W.3d
1, 27 (Tex. 2015); Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006).
This duty “is not satisfied by simply suggesting that the causes of action for which fees
are and are not recoverable required proof of the same set of facts and circumstances.”
Jackson Walker, LLP, 518 S.W.3d at 27. “[I]ntertwined facts alone do not make
unrecoverable fees recoverable.” Id. “[I]t is only when discrete legal services advance
both a recoverable and unrecoverable claim that they are so intertwined that they need
not be segregated.” Tony Gullo Motors I, L.P., 212 S.W.3d at 313–14.
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“Contemporaneous billing records are not required to prove that the requested
fees are reasonable and necessary. Nevertheless, billing records are strongly encouraged
to prove the reasonableness and necessity of requested fees when those elements are
contested.” Rohrmoos Venture, 578 S.W.3d at 502 (internal citations omitted). The
standard for proving reasonable attorney’s fees is by using the lodestar method,
calculating the reasonable hours expended and multiplying that number by a reasonable
hourly rate. Id. at 498. “Sufficient evidence includes, at a minimum, evidence of
(1) particular services performed, (2) who performed those services, (3) approximately
when the services were performed, (4) the reasonable amount of time required to
perform the services, and (5) the reasonable hourly rate for each person performing
such services.” Id. “This base lodestar figure should approximate the reasonable value
of legal services provided in prosecuting or defending the prevailing party’s claim
through the litigation process.” Id. This presumptive calculation may be adjusted up or
down based on certain factors not relevant to this case. See id. at 499–501.
“General, conclusory testimony devoid of any real substance will not support a
fee award.” Id. at 501. Generalities about tasks performed provide insufficient
information for the factfinder to meaningfully review whether the tasks and hours were
reasonable and necessary. City of Laredo v. Montano, 414 S.W.3d 731, 736 (Tex. 2013); El
Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012); Jurgens v. Martin, 631 S.W.3d
385, 418 (Tex. App.—Eastland 2021, no pet.). Failure to provide evidence of what fees
are reasonable and necessary combined with failing to segregate fees or offer evidence
13
of the “inextricably intertwined” nature of the fees results in failure to segregate
requiring reversal. NP Anderson Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 467 (Tex.
App.—Fort Worth 2007, no pet.).
B. Analysis
1. Summary of Issues and Holdings
The Hollmanns present ten issues on appeal: 4
a. Does Tex. Civ. Prac. & Rem. Code § 34.001 No Execution on
Dormant Judgment . . . apply to the Hollmanns’ request for
distribution of funds from the Registry when such funds were previously
deposited there by virtue of actions the Hollmanns took earlier in the
trial court to collect on their [underlying] judgment? [Issue 1]
b. Even if [Section] 34.001 [is] applicable, was the Hollmanns’ [underlying]
judgment “dormant,” which prevented the funds in the Registry from
being distributed to the Hollmanns, when the Hollmanns’ earlier
collection actions in the trial court caused funds owed to the judgmentdebtor to be deposited in the Registry long before the [underlying]
judgment became “dormant”? [Issue 2]
c. Even if [Section] 34.001 applied and the Judgment was “dormant,” did
the actions of debt filed by the Hollmanns in the trial court revive their
[underlying] judgment under Tex. Civ. Prac. & Rem. Code § 31.006
“Revival of Judgment” . . . ? [Issue 3]
d. Did Shaw have standing to claim the Hollmanns’ [underlying] judgment
was dormant when he was not the judgment-debtor and was his claim to
the funds otherwise without merit as a matter of undisputed facts? [Issue
4]
Holdings on Issues 1–4: Overruled.
4
We have altered the formatting and capitalization of the issues.
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e. Was the Trial Court’s award of $180,000 in attorney’s fees to Shaw not
equitable or just under the circumstances related to the actions the
Hollmanns took in the trial court? [Issue 5]
Holding on Issue 5: Sustained as to the lack of segregation of fees.
f. Was the trial court’s dismissal of the Hollmanns’ request for distribution
of the funds in the registry for want of prosecution under Tex. R. Civ. P.
165a(2) or pursuant to the trial court’s inherent power an abuse of
discretion? [Issue 6]
g. Was the trial court’s implicit denial of the Hollmanns’ explicit request
that the case be reinstated an abuse of discretion? [Issue 7]
Holding on Issues 6 & 7: We do not reach these issues. See Tex. R. App. 47.1.
h. Was the trial court’s refusal to modify and correct the Final Judgment
error given the meaningful and substantive errors it made in the Final
Judgment and the Findings and Conclusions? [Issue 8]
Holding on Issue 8: Overruled.
i. Was the trial court’s refusal to make additional and amended findings of
fact a meaningful error based on the legitimacy and importance of such
findings to an appropriate resolution of the case? [Issue 9]
Holding on Issue 9: Overruled
j. Subject to and without waiving the Hollmanns’ argument herein that the
trial court erred in awarding a Final Judgment to Shaw, did the trial court
err by awarding post-judgment interest at 8.5% in violation of Finance
Code [Section] 304.003 which limits such rate to 7.5% and in ignoring
the Hollmanns’ request to properly calculate the post-judgment rate?
[Issue 10]
Holding on Issue 10: Sustained as to the correct rate of interest.
2. Issues 1–4 Discussed
The first preliminary matter to be addressed is Shaw’s contention that the
Hollmanns have not appealed from the trial court’s summary judgment for Shaw against
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Kramer and the subsequent Final Judgment that incorporated that summary judgment
and awarded Shaw the interpleaded funds. See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d
763, 782 (Tex. 2020). While we disagree that the Hollmanns did not attempt to challenge
the Final Judgment in this regard, our discussion below reflects that their challenge was
waived due to inadequate briefing. As a result, that portion of the Final Judgment will
be affirmed.
As another preliminary matter, Shaw argues that there is no evidence of the
Hollmanns’ underlying judgment in the record. Shaw contends that the Hollmanns’
judgment was never admitted into evidence by the court and that the trial court’s taking
judicial notice of the pleadings was ineffective because the underlying judgment was
from another court and was not properly authenticated. See WorldPeace v. Comm’n for
Lawyer Discipline, 183 S.W.3d 451, 459 (Tex. App.—Houston [14th Dist.] 2005, pet.
denied); Elwell v. State, 872 S.W.2d 797, 799 (Tex. App.—Dallas 1994, no pet.); Penix v.
State, 748 S.W.2d 629, 630–31 (Tex. App.—Fort Worth 1988, no writ). We disagree that
there was no evidence of the Hollmanns’ underlying judgment to support the trial
court’s finding of fact.
First, in its Findings of Fact, the trial court found that “On April 25, 2011, [the
Hollmanns] obtained a judgment against [Kramer] in the 352nd Judicial District Court
of Tarrant County, Texas. The judgment was in the amount of $863,781.13.” This court
will defer to unchallenged findings of fact that are supported by some evidence. Tenaska
Energy, Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523 (Tex. 2014). Shaw does
16
not contest this finding’s factual correctness, only that it is not supported by the
evidence.
Judicial notice is mandatory if a party requests it and supplies the court with the
necessary information. Off. of Pub. Util. Couns. v. Pub. Util. Comm’n, 878 S.W.2d 598,
600 (Tex. 1994); Krishnan v. Ramirez, 42 S.W.3d 205, 222–23 (Tex. App.—Corpus
Christi–Edinburg 2001, pet. denied). Courts may take judicial notice of adjudicative
facts at any stage of the proceedings and may take judicial notice of other courts’ records
if given proper proof. Krishnan, 42 S.W.3d at 222–23. In Krishnan, a wrongful death suit
in district court, at the plaintiffs’ request the trial court took judicial notice of a probate
court order holding that there was no necessity of administration of the decedent’s
estate and no requirement for the appointment of a personal representative. Id. The
court of appeals held that judicial notice of that order was proper since the plaintiffs
had filed and served certified copies of the motion and order from the probate court
and the defense did not object. Id.
In this case, the Hollmanns provided the trial court and opposing counsel with
a certified copy of the Amended Final Judgment in their underlying case. It is a duplicate
of the Amended Final Judgment attached to the Hollmanns’ Eighth Amended Petition
except it is certified. Although the trial court did not admit the certified copy into
evidence, it did take judicial notice of the pleadings on file. Shaw did not object to the
tender of the certified copy. We may therefore infer that sometime prior to the rendition
of judgment, the court properly took judicial notice of the certified copy of the
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Amended Final Judgment in view of its Finding of Fact. See Sunbelt Builders v. Payne
Concrete, No. 07-00-0387-CV, 2000 WL 1635711, at *4 (Tex. App.—Amarillo Oct. 31,
2000, no pet.); Est. of Kidd, 812 S.W.2d 356, 359 (Tex. App.—Amarillo 1991, writ
denied). Thus, no further proof of the judgment was necessary. See Vaccaro v. Raymond
James & Assoc., Inc., 655 S.W.3d 485, 489 n.2 (Tex. App.—Fort Worth 2022, no pet.).
The final preliminary matter to address is Shaw’s contention that the Hollmanns
did not appeal the trial court’s judgment granting his plea to the jurisdiction, requiring
an affirmance of the take-nothing judgment against the Hollmanns. Shaw’s plea was
based on the dormancy of the Hollmanns’ underlying judgment. However, Issues
1 through 4 challenge the trial court’s take-nothing judgment based on the dormancy
of their judgment. The order granting the Plea to the Jurisdiction was part of the Final
Judgment. We will therefore construe Issues 1 through 4 as encompassing the trial
court’s ruling on the Plea to the Jurisdiction. See Tex. R. App. P. 38.1(f) (“The statement
of an issue or point will be treated as covering every subsidiary question that is fairly
included.”); see also Stephenson v. LeBoeuf, 16 S.W.3d 829, 843–44 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied).
We will start our discussion of Issues 1 through 4 with Issue 4. The Hollmanns
contend that Shaw has no standing to assert dormancy of their underlying judgment
because that defense belongs only to the judgment debtor. The Hollmanns cite no legal
authority in support of this contention and offer no legal analysis. It is therefore waived
due to inadequate briefing. To assert an issue on appeal, an appellant’s brief “must
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contain a clear and concise argument for the contentions made, with appropriate
citations to authorities.” Tex. R. App. P. 38.1(i). An appellant waives an issue on appeal
if he or she does not adequately brief that issue by providing supporting arguments,
substantive analysis, and appropriate citations to authorities and the record. Carr v.
Claudio, No. 01-22-00815-CV, 2024 WL 3187354, at *4 (Tex. App.—Houston [1st
Dist.] June 27, 2024, no pet.) (mem. op.); Marin Real Est. Partners, L.P. v. Vogt,
373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.); Huey v. Huey, 200 S.W.3d
851, 854 (Tex. App.—Dallas 2006, no pet.); Cervantes-Peterson v. Tex. Dep’t of Fam. &
Protective Servs., 221 S.W.3d 244, 255 (Tex. App.—Houston [1st Dist.] 2006, no pet.). 5
Even if the standing issue was not waived by inadequate briefing, it would be
overruled. A person has standing to sue for an injury when the pleaded facts state a
concrete and particularized injury, actual or imminent, not a hypothetical injury. Teal
Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n, 593 S.W.3d 324,
331 (Tex. 2020) (citing Heckman v. Williamson Cnty., 369 S.W.3d 137, 155 (Tex. 2012)).
When parties are asserting competing claims to an interpleaded fund, one may challenge
the other’s right to the fund because its underlying claim is barred by limitations.
McBryde v. Curry, 914 S.W.2d 616, 620 (Tex. App.—Texarkana 1995, writ denied). A
5
The Hollmanns also argue that Shaw was not entitled to the interpleaded funds because his claim was barred by limitations, was behind their claim in priority, and was based on a “bogus and contrived transaction between Shaw and Kramer.” These arguments are likewise waived for inadequate briefing because they cite no legal authority and offer no substantive analysis. See Tex. R. App. P. 38.1(i).
19
party seeking to enforce a judgment is subject to the ten-year limitations period of Texas
Civil Practice and Remedies Code Section 34.001. Tex. Civ. Prac. & Rem. Code
§ 34.001; Abrams v. Salinas, 467 S.W.3d 606, 611 (Tex. App.—San Antonio, no pet.); see
also Huff v. Huff, 648 S.W.2d 286, 287 (Tex. 1983) (referring to Section 34.001’s
predecessor statute as the “ten-year statute of limitation for the renewing and
enforcement of judgments”). So, Shaw had standing to raise the dormancy of the
Hollmann’s underlying judgment to enhance his claim to the interpleaded funds, just as
the Hollmanns challenged Shaw’s claim against Kramer.
Issue 1 asks whether Section 34.001 applies to the Hollmanns’ request for
distribution of the interpleaded funds. The answer is “yes.” The Hollmanns contend
that Section 34.001 is not applicable to their request for distribution because they were
not seeking to execute on their underlying judgment; they “simply wanted the funds
they caused to be deposited in the Registry to be distributed to them.” This simplistic
statement misses the mark. In an interpleader action, there are two stages:
In the first stage, the court determines whether interpleader is appropriate.
Generally, the stakeholder is discharged from liability to the rival claimants
in the first stage of the process [to] avoid the cost of additional litigation
over the stake it once held, but to which it asserts no claim. In the second
stage, after interpleader has been determined to be appropriate, the rival
claimants litigate their differences.
Clayton v. Mony Life Ins. Co. of Am., 284 S.W.3d 398, 402 (Tex. App.—Beaumont 2009,
no pet.). When, as here, multiple parties claim interpleaded funds, each claimant must
prove its own claim to the funds and its “relative priority as to all other claimants.”
20
CCPA Enter., Inc. v. Bedford Hosp. Inv., LLC, No. 02-17-00382-CV, 2019 WL 5608230,
at *6 (Tex. App.—Fort Worth Oct. 31, 2019, no pet.) (mem. op.) (quoting Branch v.
Monumental Life Ins., 422 S.W.3d 919, 923 (Tex. App.—Houston [14th Dist.] 2014, no
pet.)); McBryde, 914 S.W.2d at 620. Thus, both the Hollmans and Shaw had a duty to
prove their entitlement to the interpleaded funds, and merely asking for distribution
was not sufficient.6
Shaw raised the dormancy of the Hollmanns’ underlying judgment, in essence a
limitations plea, as a defense to their entitlement to the interpleaded funds. See Tex. Civ.
Prac. & Rem. Code § 34.001(a); McBryde, 914 S.W.2d at 620.
Section 34.001 provides, in pertinent part,
(a) If a writ of execution is not issued within 10 years after the rendition
of a judgment of a court of record or a justice court, the judgment is
dormant and execution may not be issued on the judgment unless it is
revived.
(b) If a writ of execution is issued within 10 years after rendition of a
judgment but a second writ is not issued within 10 years after issuance of
the first writ, the judgment becomes dormant. A second writ may be
issued at any time within 10 years after issuance of the first writ.
Tex. Civ. Prac. & Rem. Code § 34.001.
6
Although the Hollmanns’ and Shaw’s initial pleadings were applications for writs of garnishment, no writs were actually issued. PA deposited the funds into the court registry as an interpleader. When an alleged garnishee places funds into the court registry as an interpleader, the rules of garnishment no longer apply. Daniels v. Pecan Valley Ranch, Inc., 831 S.W.2d 372, 383 (Tex. App.—San Antonio 1992, writ denied).
21
The underlying judgment on which the Hollmanns were relying to create their
right to the interpleaded funds was rendered on April 25, 2011. In the absence of the
issuance of a “writ of execution” on or before April 25, 2021, their underlying judgment
became dormant. So, what is meant by the phrase “writ of execution?”
In holding that a turnover order was not a writ of execution, we stated in Keith
M. Jensen, P.C.,
Under the rules, “[a]n execution is a process of the court from which it is
issued,” Tex. R. Civ. P. 622, through which a judgment creditor can
enforce a judgment. Tex. R. Civ. P. 621. A writ of execution is issued by
the clerk of the court where the judgment was signed, see Tex. R. Civ. P.
622, 627, and must comply with the following requirements:
The style of the execution shall be “The State of Texas.” It
shall be directed to any sheriff or any constable within the
State of Texas. It shall be signed by the clerk or justice
officially, and bear the seal of the court, if issued out of the
district or county court, and shall require the officer to
execute it according to its terms, and to make the costs which
have been adjudged against the defendant in execution and
the further costs of executing the writ. It shall describe the
judgment, stating the court in which, and the time when,
rendered, and the names of the parties in whose favor and
against whom the judgment was rendered. A correct copy of
the bill of costs taxed against the defendant in execution shall
be attached to the writ. It shall require the officer to return
it within thirty, sixty, or ninety days, as directed by the
plaintiff or his attorney.
Tex. R. Civ. P. 629. Once delivered to any sheriff or constable in Texas,
the writ empowers the officer to levy on a debtor’s nonexempt real and
personal property within the officer’s jurisdiction and sell the property.
Tex. R. Civ. P. 622, 637, 646a, 649.
22
2015 WL 1407357, at *3; see also Lavizadeh v. Moghadam, No. 05-18-00955-CV,
2019 WL 6799756, at *7 (Tex. App.—Dallas Dec. 13, 2019, no pet.) (mem. op.)
(holding that a turnover order was not an execution that would trigger a duty to
indemnify under a trust agreement).
It is uncontroverted that no “writ of execution,” as so defined, was issued on the
Hollmanns’ underlying judgment. But the Hollmanns contend that their filing of their
Petition in Intervention, Application for Writ of Garnishment and Third-Party Petition
resulted in PA’s acknowledging their garnishment claim and disclaiming any rights in
the interpleaded funds. They also point to their Amended Petition, Second Amended
Petition, Fourth Amended Petition, Fifth Amended Petition, and Sixth Amended
Petition where they continued to pursue their claims against the interpleaded funds.
However, PA’s Original Answer to the Hollmanns’ Application for Writ of
Garnishment did not actually acknowledge anything other than the existence of
competing applications for writ of garnishment, and it mentioned nothing about writs
having been issued and served in accordance with the rules. In fact, the Hollmanns’
Petition did not request service on PA and served the Petition only on PA’s attorney by
email and certified mail. We do not find this argument persuasive.
We held in Keith M. Jensen, P.C. that “the only method provided under [S]ection
34.001 to prevent a judgment from becoming dormant is the issuance of a writ of
execution. See Tex. Civ. Prac. & Rem. Code [ ]§ 34.001.” 2015 WL 1407357, at
*6 (emphasis added).
23
So, is a “writ of garnishment” the equivalent of a “writ of execution” under
Section 34.001(a)? It appears that neither we nor our Supreme Court has yet addressed
this question. 7 Shaw relies on Harper v. Spencer & Associates P.C., 446 S.W.3d 53, 56–
58 (Tex. App.—Houston [1st Dist.] 2014, pet. denied), which held that a writ of
garnishment “satisfies the statutory requirement” of a writ of execution under Section
34.001(a). Id. at 57. Holding to the contrary, and expressly rejecting the holding in the
Harper case, is Smith v. Pallida, No. 4:18-CV-870-A, 2019 WL 919555, at *3 (N.D. Tex.
Feb. 23, 2019). We are not bound by the decisions of either our sister courts of appeals
or federal district courts. In re Reardon, 514 S.W.3d 919, 923 (Tex. App.—Fort Worth
2017, no pet.) (sister courts of appeal); Stickland v. Schlegel, No. 02-22-00281-CV,
2023 WL 8112889, at *14 n.28 (Tex. App.—Fort Worth Nov. 22, 2023, pet. denied)
(mem. op.) (federal courts).
With all due deference to our sister court, we believe the reasoning of Smith
holding that a “writ of garnishment” is not a “writ of execution” under Section
34.001(a) should be applied. According to the Smith court,
As the Harper court notes, garnishment is one means of collecting on a
judgment. 446 S.W.3d 446 at 56. But that does not mean that a writ of
garnishment is a writ of execution. Garnishment and execution are two
separate things. And, that other types of judgment collection activities
qualify as writs of execution because they meet the definition of Tex. R.
Civ. P. 629 (e.g., are directed to any sheriff or constable and are returnable
7
This court held in Shields v. Stark, 51 S.W. 540, 540 (Tex. App.—Fort Worth 1899, no writ), that a writ of garnishment was not a writ of execution, but that case predates the modern rules of procedure.
24
in 30, 60, or 90 days) does not mean that a writ of garnishment so qualifies.
See Keith M Jensen, P.C., 2015 WL 1407357, at *3–*6 (explaining why a
turnover order is not a writ of execution); Raymond K. Oukrop DDS, P.C.
v. Tatsch, 2014 WL 3734192, at *4 (Tex. App.—Austin 2014, no pet.)
(mem. op.) (same). It does not.
A writ of garnishment is not directed to a sheriff or constable; it is
directed to the garnishee. Tex. R. Civ. P. 661; Tenet Health Sys. Hosps.
Dall[.], Inc. v. N. Tex. Hosp. Physicians Grp., P.A., 438 S.W.3d 190, 197 (Tex.
App.—Dallas, no pet.). The sheriff or constable simply delivers the writ
of garnishment to the garnishee, Tex. R. Civ. P. 663. Service on the
judgment debtor is accomplished as in other civil cases and the action
proceeds as any other civil suit. Tex. R. Civ. P. 663a–79. The sheriff or
constable does not seize any property in satisfaction of a judgment.
2019 WL 919555, at *3.
Even if we were to assume that a writ of garnishment satisfies the requirement
of writ of execution under Section 34.001(a), the Hollmanns failed to comply with
Section 34.001(a) because no writ was ever issued. See Hawthorne v. Guenther, 461 S.W.3d
218, 221–22 (Tex. App.—San Antonio 2015, pet. denied) (holding that “issued” under
Section 34.001 means more than the mere clerical preparation and attestation of the
writ; it must be delivered to an officer for enforcement). As a result, the Hollmanns’
judgment would still have become dormant in this scenario even though they filed an
application for writ of garnishment. See id. at 222.
In Issue 2 the Hollmans argue alternatively that the totality of their efforts
constitutes the equivalent of a writ of execution and that to hold otherwise would have
required them to do unnecessary and wasteful work when the funds available from PA
had been interpleaded into the court’s registry. In support of this argument, they cite to
25
Harper, where the court stated that the judgment creditor did not have to go through
the exercise of obtaining a writ of execution against the judgment debtor to prevent the
original judgment from becoming dormant when he had obtained the issuance of a writ
of garnishment. 446 S.W.3d at 58.
The first fallacy to this argument is that after the Harper court held that a writ of
garnishment satisfied the writ of execution requirement under Section 34.001(a), there
was no basis to require anything further as the requirement for a writ of execution (or
its equivalent) had been met. As a result, this comment by the Harper court was dicta.
Second, the present situation is distinguishable from Harper because the Hollmanns did
not obtain issuance of a writ of garnishment to satisfy the writ of execution requirement.
Finally, the argument about having to perform unnecessary and wasteful work
has been rejected by the Supreme Court in the writ of execution setting. In Delta County
Levee Improvement District No. 2 v. Leonard, 516 S.W.2d 911, 913 (Tex. 1974), Leonard was
attempting to collect on judgments on unpaid bonds issued by the District. Id. at 912.
The question before the court was whether the actual writs of execution, which had
been issued in a timely fashion to keep the underlying judgments alive, were effective
since the District was not subject to execution as a matter of law, collection only being
available by writ of mandamus. Id. at 912–13. The court held that the only method for
keeping judgments alive under Section 34.001(a)’s predecessor statute was by writ of
execution, even though obtaining such writs could not have resulted in actual execution
of assets. Id. at 913. As we noted at the beginning of this opinion, the legislature is
26
presumed to understand the needs of its people, and it directs laws to address the needs
of its people in the manner it sees best fit. Enron Corp., 922 S.W.2d at 934. “The wisdom
or expediency of a law is for the Legislature to determine, not this Court.” Id. Whether
it is wise or fair to require judgment creditors to expend money or effort to keep their
judgments alive in ways that may seem wasteful to them is for the legislature to resolve,
not the courts.
In Issue 3, the Hollmans contend that if their underlying judgment had become
dormant, their application for writ of garnishment and their attendant petitions to
collect the interpleaded funds constituted an action to revive the judgment. See Tex.
Civ. Prac. & Rem. Code § 34.001(a). However, “[a] dormant judgment may be revived
by scire facias or by an action of debt brought not later than the second anniversary of
the date that the judgment becomes dormant.” Id. § 31.006; Hawthorne, 461 S.W.3d at
222. The actions taken by the Hollmans were neither a scire facias nor an action for
debt.
An action for debt “is a new and independent suit that does not seek execution
of the former judgment, but instead, seeks recovery of the full amount of the debt owed
under the former judgment.” Hawthorne, 461 S.W.3 at 222; see also Clarke v. Frost Nat’l
Bank, No. 08-23-00310-CV, 2024 WL 3579325, at *2 (Tex. App.—El Paso July 29,
2024, no pet.) (mem. op.); Frost Nat’l Bank v. White, No. 14-18-00437-CV,
2019 WL 1602180, at *1 (Tex. App.—Houston [14th Dist.] Apr. 16, 2019, no pet.)
(mem. op.). The Hollmanns urge us to adopt Hawthorne’s holding that an intervention
27
by a judgment creditor in a suit by the judgment debtor in another case coupled with a
turnover order in the second case constitutes an “action for debt” that would serve to
revive their underlying judgment. We must assume that the intervention relied upon by
the Hawthorne court met its definition—one seeking recovery of the full amount of the
debt owed under the former judgment. The Hollmanns’ pleadings do not qualify for
“an action for debt” under the Hawthorne test; they were merely seeking to collect the
interpleaded funds based on the dormant underlying judgment, not a new and
independent judgment seeking the full amount owed under the underlying judgment.
The Hollmanns also rely on In re Brints, 227 B.R. 94, 97 (Bankr. N.D. Tex. 1998),
in arguing that their intervention in the interpleader action was an action for debt. Their
reliance is misplaced. Brints held that “[a] new suit based on the original judgment
brought against the judgment debtors is an action [for] debt.” Id. There, the suit was
one to revive a judgment brought by a successor trustee who owned a judgment against
the judgment debtor. In contrast, the Hollmanns’ action was against the interpleaded
funds and Shaw, not their underlying judgment debtor. They also rely on Ater v. Knight,
218 S.W. 648 (Tex. App.—Amarillo 1920, writ ref’d), for the same proposition, but it
is distinguishable for the same reason.
Further, the Hollmanns’ pleadings do not qualify as a scire facias. “A scire facias
proceeding for the revival of a judgment does not constitute a new suit but is merely a
continuation of the original suit in which the judgment was rendered.” Carey v. Sheets,
218 S.W.2d 881, 882 (Tex. App.—Waco 1949, no writ); see Berly v. Sias, 255 S.W.2d 505,
28
508 (Tex. 1953); Clarke, 2024 WL 3579325, at *2; Pharus Funding, LLC v. Solley,
No. 06-20-00090-CV, 2021 WL 1680206, at *1 (Tex. App.—Texarkana Apr. 29, 2021,
no pet.). The process for an application for scire facias is,
First, the judgment creditor must file an application for writ of scire facias.
Once a scire facias is issued, the writ must be served on the judgment
debtor in accordance with the rules governing writs and process. This
requires “the person against whom it is issued to appear and show
cause . . . why a dormant judgment against that person should not be
revived.” After the judgment debtor has answered, or after the time for
filing an answer has expired, the judgment creditor may set a hearing on
its application to revive the dormant judgment and obtain an order
reviving the judgment.
Clarke, 2024 WL 3579325, at *2 (internal citations and footnotes omitted); see also Solley,
2021 WL 1680206, at *1.
The Hollmanns’ pleadings did not meet this test, either. No application for writ
of scire facias was filed in the original suit. No writ was issued commanding the debtor
(Kramer) to appear and show cause why the underlying judgment against him should
not be revived, and no hearing was held on the application to revive the dormant
underlying judgment. Failure to comply with these requirements results in no revival of
the dormant judgment. Clarke, 2024 WL 3579325, at *4.
Finally, regarding the trial court’s denial of the Hollmanns’ request for attorney’s
fees, while acknowledging that an unsuccessful claimant under the TDJA may be
awarded recovery of reasonable and necessary attorney’s fees that are just and equitable
under the circumstances, we also note that a trial court’s decision on whether to award
fees under such circumstances will not be disturbed unless there was an abuse of
29
discretion. Severs, 559 S.W.3d at 712. In light of our holdings on Issues 1 through 4, we
cannot say that the trial court abused its discretion in not awarding attorney’s fees to
the Hollmanns, meaning it did not act without reference to any guiding rules and
principles. See id.
In light of the above and foregoing discussion, we overrule Issues 1–4 and that
part of Issue 5 complaining that the trial court awarded no attorney’s fees to the
Hollmanns.
3. Issue 5 Discussed
In the remainder of their fifth issue, the Hollmanns contend that the award to
Shaw of $180,000 of attorney’s fees was not equitable or just, in part because Shaw did
not segregate his fees between matters for which recovery of attorney’s fees is allowed
and those that do not allow recovery of attorney’s fees. See Tex. Civ. Prac. & Rem. Code
§ 37.009. The Hollmanns preserved this issue for review by raising it in their Motion to
Modify, Correct, or Reform Final Judgment, Disregard Certain Findings of Fact and
Conclusions of Law, and Vacate or Set Aside Order to Distribute Funds, or For New
Trial or to Reinstate. See Ins. Alliance v. Lake Texoma Highport, LLC, 452 S.W.3d 57,
73 (Tex. App.—Dallas 2014, pet. denied) (holding that failure to segregate attorney’s
fees challenge is essentially a factual sufficiency challenge preservable by motion for
new trial). We will sustain Issue 5 on the failure to segregate challenge.
Shaw’s counsel testified about his attorney’s fees. He specifically limited his
testimony about fees to the period from November 2023 to trial. After proving his
30
qualifications to testify, which are not in dispute, he offered no contemporaneous billing
records documenting his work, the time expended, or the specific tasks performed. He
testified that he accumulated no less than 250 hours of attorney time that was necessary
and that $600 was a reasonable hourly fee for his services.8
His description of the work performed was general in nature: preparing for trial,
preparing exhibits, researching matters, multiple hearings, preparing mandamus
proceedings to compel rulings from the trial court on various motions, and it being a
complicated case. He did not testify about specific tasks or segregate his fees between
causes of action.
While many pleadings and motions were filed between November 2023 and trial,
the following are pertinent to the question of segregation of attorney’s fees. On
December 15, 2023, Shaw filed his Answer to Plaintiffs’ Seventh Amended Petition. In
addition to a general denial, he pled these affirmative defenses to the Hollmanns’ claims:
failure to prosecute their claims with due diligence and their claims were barred by
Texas Civil Practice and Remedies Code Sections 34.001 and 31.006, the statute of
limitations, waiver, estoppel, laches, unclean hands, contributory negligence, release,
8
In global, conclusory terms he also testified that reasonable fees for an appeal to the court of appeals would be $20,000, plus $20,000 for responding to a petition for review to the Supreme Court, $30,000 more for briefing on the petition for review, plus an additional $7,500 for oral argument and $5,000 for a motion for rehearing. See Granbury SNF LLC v. Jackson, No. 02-24-00248-CV, 2025 WL 807497, at *13 (Tex. App.—Fort Worth Mar. 13, 2025, no pet.) (mem. op.) (discussion of cases addressing adequacy of this type of proof for awards of conditional appellate attorney’s fees).
31
failure of conditions precedent, and fraud. He also sought sanctions under Texas Civil
Practice and Remedies Code Section 10.001 et seq. and asked for attorney’s fees in his
prayer for relief.
Shaw’s First Amended Counterclaim and Request for Declaratory Relief was
filed on December 28, 2023. There, he sought declaratory relief that the interpleaded
funds were rightfully his and that the Hollmanns’ underlying judgment was dormant
and would not support a claim against the interpleaded funds. He also pleaded that the
Hollmanns were liable to him for damages for tortious interference with contract and
an unspecified continuing tort. He further contended that the Hollmanns failed to
prosecute their claim with due diligence and that it should be dismissed with prejudice.
He sought unspecified damages for actual, compensatory and exemplary damages and
attorney’s fees. In his Second Amended Counterclaim and Request for Declaratory
Relief, filed February 9, 2024, Shaw added a claim against the Hollmanns for tortious
interference with judgment in addition to his previously asserted claims. On March 12,
2024, Shaw filed his Motion for Summary Judgment Regarding his Cross-Claim Against
Paul Kramer, which was granted by order dated February 6, 2025.
Based on Shaw’s pleadings between November 2023 and trial, he alleged causes
of action for which attorney’s fees are recoverable and for which attorney’s fees are not
recoverable. Claims that Shaw asserted for which recovery of attorney’s fees are allowed
include:
32
* breach of contract on the note allegedly owed to him by Kramer and the
assignment of the interpleaded funds to him. See ½ Price Checks Cashed v.
United Auto. Ins. Co., 344 S.W.3d 378, 385–86 (Tex. 2011) (holding that a
drawer of a check enters into a contract to unconditionally promise to pay
the payee and a suit for breach of that promise falls under Texas Civil
Practice Remedies Code Section 38.001 for recovery of attorney’s fees); 9
* claim for declaratory judgment under the TDJA that the interpleaded
funds were rightfully his, and also for defending against the Hollmanns’
claim that the interpleaded funds were rightfully theirs. See Wells Fargo
Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015); BP Oil Pipeline Co.
v. Plains Pipeline, L.P., 472 S.W.3d 296, 319 (Tex. App.—Houston [14th
Dist.] 2015, pet. denied).
* sanctions under Texas Civil Practice and Remedies Code Section 10.001 et
seq.
Claims Shaw asserted for which no recovery of attorney’s fees is allowed include:
* tortious interference with contract. Alma Grp., L.L.C. v. Palmer,
143 S.W.3d 840, 846 n.5 (Tex. App.—Corpus Christi-Edinburg 2004, pet.
denied); Martin–Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied));
* tortious interference with judgment and continuing tort. See Brosseau v.
Ranzau, 81 S.W.3d 381, 398 (Tex. App.—Beaumont 2002, pet. denied)
(holding that generally attorney’s fees are not recoverable in tort actions
unless provided by statute); Huddleston v. Pace, 790 S.W.2d 47, 49 (Tex.
App.—San Antonio 1990, writ denied) (same).
9
This attorney’s fee claim would have entitled Shaw to a recovery of attorney’s fees against Kramer, which would have been included in his claim against the interpleaded funds. On the face of the record, there is no evidence as to these fees being recoverable against the Hollmanns. On remand, it will be Shaw’s burden to establish how these discrete legal fees should be assessed against the Hollmanns as part of the TDJA claim or otherwise. See A & L Eng’g & Consulting, Inc. v. Shiloh Apollo Plaza, Inc., 315 S.W.3d 928, 931–32 (Tex. App.—Dallas 2010, no pet.) (failure to segregate fees for quantum meruit claim from TDJA claim required reversal and remand); see also Ashburn v. Myers, No. 02-20-00183-CV, 2021 WL 1229969, at *6 (Tex. App.—Fort Worth Apr. 1, 2021, no pet.) (mem. op.).
33
Because Shaw alleged causes of action for which recovery of attorney’s fees were
and were not recoverable, he had a duty to segregate those fees that were recoverable
from those that were not. Tony Gullo Motors I, L.P., 212 S.W.3d at 310–11; Ashburn,
2021 WL 1229969, at *6. He failed to do so. Shaw also failed to detail the work
performed, using general descriptions that were global and conclusory, which are
factually insufficient to support an award of attorney’s fees. Rohrmoos Venture,
578 S.W.3d at 496 (holding that generalities about work performed are insufficient to
support an attorney’s fee award); City of Laredo v. Montano, 414 S.W.3d 731, 736–37 (Tex.
2013) (“Gonzalez’s testimony that he spent ‘a lot of time getting ready for the lawsuit,’
conducted ‘a lot of legal research,’ visited the premises ‘many, many, many, many times,’
and spent ‘countless’ hours on motions and depositions is not evidence of a reasonable
attorney’s fee under lodestar.”). In a TDJA claim, where the attorney’s fee claimant
failed to detail the reasonableness and necessity of the work performed and failed to
segregate the work between causes of action for which attorney’s fees recovery was
authorized from those for which it was not, it was an abuse of discretion to award
attorney’s fees on the successful TDJA claim. NP Anderson Cotton Exch., L.P.,
230 S.W.3d at 468; see Sustainable Tex. Oyster Res. Mgmt., L.L.C. v. Hannah Reef, Inc.,
623 S.W.3d 851, 871–74 (Tex. App.—Houston [1st Dist.] 2020, pet. denied). We,
therefore, sustain the remainder of Issue 5 and will reverse that portion of the judgment
awarding trial and appellate attorney’s fees to Shaw and remand that portion of this case
34
to the trial court for a proper determination of fees. Tony Gullo Motors I, L.P., 212 S.W.3d
at 314; Sustainable Tex. Oyster Res. Mgmt., L.L.C., 623 S.W.3d at 874.
4. Issues 8–9 Discussed
First, an appellant’s brief must state concisely all issues or points presented for
review. Academy of Skills & Knowledge, Inc. v. Charter Schools, USA, Inc., 260 S.W.3d 529,
536 (Tex. App.—Tyler 2008, pet. denied). An issue presented in an appellant’s brief is
sufficient if it directs the attention of the appellate court to the error about which the
complaint is made. Maida v. Fire Ins. Exch., 990 S.W.2d 836, 839 (Tex. App.—Fort
Worth 1999, no pet.). Issues 8 and 9 fail to do so. Further, although the Hollmanns
state these Issues in their Issues on Appeal section of their Corrected Brief, there is no
argument or authority addressing these Issues in their brief. An appellate court cannot
decide an issue on appeal without proper argument and authority showing why the
actions of the trial court were in error. Stephens & Johnson Operating Co. v. Schroeder,
No. 04-14-00167-CV, 2015 WL 4760029, at *6 (Tex. App.—San Antonio Aug. 12,
2015, pet. denied) (mem. op.). An appellant cannot merely state an issue; he must
present argument and supporting authority. Id.; Bechtel Corp. v. City of San Antonio,
No. 04-04-00910-CV, 2006 WL 228689, at *2 (Tex. App.—San Antonio 2006, no pet.);
Wilson & Wilson Tax Servs., Inc. v. Mohammed, 131 S.W.3d 231, 242 (Tex. App.—Houston
[14th Dist.] 2004, no pet.). As a result, Issues 8 and 9 are inadequately briefed and are
waived. See Stephens & Johnson Operating Co., 2015 WL 4760029, at *6.
35
5. Issue 10 Discussed
Before addressing the proper postjudgment interest rate, we must first address
Shaw’s contention that the Hollmanns did not preserve the issue at trial. Preservation
of an issue is a prerequisite to presenting a complaint for appellate review. Tex. R. App.
P 33.1. A complaint is considered preserved when the record shows that the complaint
was made to the trial court by a motion, objection, or request that the trial court ruled
on. Id.
After the trial court entered its Final Judgment, the Hollmanns filed a Motion to
Modify, Correct, or Reform the Final Judgment. In this motion, the Hollmanns moved
to correct the postjudgment interest rate to 7.5 percent. Subsequently, the trial court
expressly denied the motion in its entirety. Therefore, the Hollmanns satisfied the
preservation requirements as established by Texas Rule of Appellate Procedure 33.1.
See Dal-Chrome Co. v. Brenntag Sw., Inc., 183 S.W.3d 133, 146 (Tex. App.—Dallas 2006,
no pet.).
The Hollmanns contend that the trial court erroneously set the postjudgment
interest rate at 8.5 percent. Shaw contends that the trial court posted the correct interest
rate. The postjudgment interest rate is the prime rate as published by the Federal
Reserve System with a floor of 5 percent and a ceiling of 15 percent. Tex. Fin. Code
§ 304.003(c). The Consumer Credit Commissioner sends the rate to the Secretary of
State, who then publishes the interest rate in the Texas Register. Id. § 304.004. Courts,
on their own accord, may take judicial notice of the contents of the Texas Register. Tex.
36
R. Evid. 204; Wagner & Brown v. E.W. Moran Drilling Co., Inc., 702 S.W.2d 760, 773 (Tex.
App.—Fort Worth 1986, no writ). Further, the courts of appeals may take judicial
notice for the first time on appeal. Off. of Pub. Util. Couns., 878 S.W.2d at 600.
On April 25, 2025, the Consumer Credit Commissioner published in the Texas
Register the postjudgment interest rate for the month of May 2025. The postjudgment
interest rate was set at 7.5 percent. 50 Tex. Reg. 2533, 2635 (2025). The trial court’s
final judgment did not reflect the proper postjudgment interest rate. Therefore, we
modify the trial court’s judgment to reflect a post-judgment interest rate of 7.5 percent.
See Morales v. Walker, No. 04-24-00867-CV, 2026 WL 1179778, at *7 (Tex. App.—San
Antonio Apr. 30, 2026, pet. denied) (mem. op.).
C. Conclusion
In light of the foregoing holdings, we affirm the judgment of the trial court on
all matters except that we modify the postjudgment interest rate to 7.5 percent, reverse
that portion of the trial court’s judgment awarding trial and conditional appellate
attorney’s fees to Shaw, and remand only that issue to the trial court for a proper
determination in accordance with this opinion. See Sw. Sunrise, LLC v. John Gannon, Inc.,
No. 14-25-00237-CV, 2026 WL 1144472, at *7 (Tex. App.—Houston [14th Dist.] Apr.
28, 2026, no pet. h.) (mem. op.).
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/s/ Mike Wallach
Mike Wallach
Justice
Delivered: August 6, 2026
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