Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00342-CV
G6 HOSPITALITY, LLC,
Appellant
v.
BUCAVI, LLC,
Appellee
From the 63rd Judicial District Court, Val Verde County, Texas
Trial Court No. 2023-0225-CIV
Honorable Roland Andrade, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Lori I. Valenzuela, Justice
Adrian A. Spears II, Justice
H. Todd McCray, Justice
Delivered and Filed: September 23, 2026
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
The underlying lawsuit involves a dispute between a franchisor, G6 Hospitality, LLC
(“G6”), and a franchisee, Bucavi, LLC (“Bucavi”). G6 originally sued Bucavi alleging claims for
breach of contract, a suit upon sworn account, a suit on an open account, and alternative equitable
claims. G6 later filed a notice of nonsuit without prejudice. Claiming it was the prevailing party,
Bucavi filed a motion for attorney’s fees. After conducting a hearing on the motion, the trial court
granted the motion and awarded Bucavi attorney’s fees and costs of court, conditional appellate
04-25-00342-CV
attorney’s fees, and post-judgment interest. In two issues on appeal, G6 asserts the trial court erred
(1) by concluding Bucavi was the prevailing party and (2) in its award of attorney’s fees, non-court
costs, and post-judgment interest. We overrule G6’s first issue related to whether Bucavi was the
prevailing party and sustain in part and overrule in part G6’s second issue related to the award of
fees, costs, and post-judgment interest.
I. BACKGROUND
G6 owns, operates, and franchises economy lodging under the “Motel 6” and “Studio 6”
brands. Pursuant to a May 2013 Franchise Agreement between G6 and Bucavi, Bucavi operated a
Studio 6 Extended Stay Motel. A Renovation Addendum, attached to the Franchise Agreement,
required Bucavi to commence renovations by May 31, 2013 and complete renovations by August
1, 2015. The Franchise Agreement contained provisions under which either party could terminate
the agreement and obtain attorney’s fees in the event of a lawsuit.
On July 23, 2020, G6 sent Bucavi notice that it was in default for failure to renovate the
property to the then-current Studio 6 Standards, and for failure to maintain the standards and public
image of the Studio 6 System. The notice informed Bucavi of the steps it should take to cure the
defaults. On September 4, on the grounds that the defaults had not been cured, G6 notified Bucavi
that it was terminating the Franchise Agreement.
On May 10, 2023, G6 sued Bucavi. 1 On April 19, 2024, Bucavi served its First Set of
Requests for Production (the “RFPs”) on G6. On May 16, G6 served its responses. Unhappy with
the responses, Bucavi’s counsel sought to schedule a time to confer with G6’s counsel about G6’s
RFP responses on four different dates. However, G6’s counsel either did not respond to the request
1
The lawsuit was filed in Harris County, Texas. About a month after it was filed, Bucavi moved to transfer the case to Val Verde County. The parties agreed to the transfer, and the trial court signed an Agreed Order transferring the case to Val Verde County.
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for a call or addressed other matters instead of agreeing to schedule a call. On June 17, Bucavi’s
counsel sent a letter to G6’s counsel outlining G6’s alleged discovery deficiencies and requesting
that G6 produce the requested documents by July 1. When G6 did not respond, Bucavi filed a
motion to compel discovery and for sanctions on July 18. A hearing on the motion was scheduled
for August 14.
On August 12, G6 filed a response to Bucavi’s motion alleging that it had already produced
122 pages of responsive documents, and that when Bucavi complained about G6’s responses and
objections, it agreed to withdraw several of its objections while reasserting that if additional
documents were located they would be produced. G6 included with its response an additional 89
pages of responsive documents. In its response, G6 pointed out to the trial court there was no trial
setting, no dispositive motion pending on the court’s docket, and no pending mediation date;
therefore, Bucavi could not demonstrate that G6 acted improperly, intentionally withheld
documents, or engaged in some other improper action to justify granting Bucavi’s motion to
compel or for sanctions. The August 14 hearing was not held, and, on August 29, the parties filed
a Rule 11 Agreement that stated as follows:
1. G6 waives its objections to Bucavi’s First Set of Requests for Production
to Plaintiff served on April 19, 2024 (the “Requests for Production”) except for its
objections to requests Nos. 6, 9, 14, and 15.
2. G6 has produced and supplemented the documents and communications
within its possession, custody, and control responsive to the Requests for
Production.
3. G6 will conduct a further search for all documents and communications
responsive to Request for Production Nos. 1-5, 7-8, 10-13, 16-20 within its
possession, custody, and control, and will electronically produce said documents
and communications to Bucavi’s counsel should further responsive documents be
found in Plaintiff’s possession, custody, and control, consistent with the
instructions in the Requests for Production.
4. Nothing in this Rule 11 Agreement should be construed as Bucavi’s
assent that G6’s objections to Requests for Production Nos. 6, 9, 14-15 are valid or
proper.
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On December 16, Bucavi noticed G6 that Bucavi sought to conduct a deposition of a
representative of G6 on January 22, 2025. On December 18, G6 filed a motion to quash the
deposition. The deposition was reset to February 6, 2025. On February 3, G6 filed a motion for
protection from discovery and for continuance. In its motion, G6 explained it received the
deposition notice on December 16, and one day later G6 was acquired by OYO Hotels, Inc.
(“OYO”). G6 stated it needed a protective order against discovery because it was in the process of
transitioning internally and externally with new employees and attorneys, including finding new
counsel for this lawsuit. On February 4, Bucavi filed a motion opposing the request for a protective
order and seeking to compel the deposition. On that same date, G6 filed its notice of nonsuit
without prejudice.
A month later, Bucavi filed a motion seeking to recover attorney’s fees and costs,
contending that because G6 nonsuited its claims to avoid an unfavorable ruling, Bucavi was the
prevailing party under the Franchise Agreement. The trial court conducted a hearing on the motion
and later signed an order awarding Bucavi attorney’s fees and costs of court, conditional appellate
attorney’s fees, and post-judgment interest. G6 now appeals from that order.
II. WAS BUCAVI THE PREVAILING PARTY?
G6 raises two complaints in its first issue. It asserts the trial court erred in concluding
Bucavi was the prevailing party because the court improperly inferred G6 nonsuited to avoid an
unfavorable ruling on the merits. G6 also asserts the trial court erred by concluding its lawsuit
lacked merit. 2
2
On appeal, G6 contends Bucavi had the burden to prove that G6’s suit was meritless when filed. As explained further below, whether a plaintiff’s case had merit at the time of filing is but one of several factors when considering whether a defendant is the prevailing party after a plaintiff nonsuits without prejudice. Therefore, we reject G6’s broad assertion that such a burden should be imposed on Bucavi as a prerequisite to determining whether it was the prevailing party.
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A. Applicable Law
A nonsuit does not affect a pending claim for affirmative relief or motion for attorney’s
fees. See TEX. R. CIV. P. 162. In its answer to G6’s lawsuit, Bucavi sought attorney’s fees pursuant
to section 22.8 of the Franchise Agreement 3 and Texas Civil Practice and Remedies Code section
38.01. This pleading constituted a request for affirmative relief that remained pending despite the
notice of nonsuit filed by G6. See Dean Foods Co. v. Anderson, 178 S.W.3d 449, 453 (Tex. App.—
Amarillo 2005, pet. denied).
When, as here, a contract provides that attorney’s fees will be awarded to the prevailing
party, the trial court must determine which party is “prevailing.” Miramar Dev. Corp. v. Sisk, No.
04-13-00777-CV, 2014 WL 1614290, at *3 (Tex. App.—San Antonio Apr. 23, 2014, pet. denied)
(mem. op.). “Generally, a defendant is not considered a prevailing party when the plaintiff nonsuits
a claim without prejudice.” Moore v. Amarillo-Panhandle Humane Soc’y, Inc., 541 S.W.3d 403,
405 (Tex. App.—Amarillo 2018, pet. denied). However, if a defendant requests attorney’s fees
under a contract or statute providing that a prevailing party may recover attorney’s fees, the
defendant may be a prevailing party if the plaintiff takes a nonsuit without prejudice and if the trial
court determines, on the defendant’s motion, that the plaintiff took the nonsuit without prejudice
to avoid an unfavorable ruling on the merits. Epps v. Fowler, 351 S.W.3d 862, 870 (Tex. 2011).
“This determination is largely based on inferences drawn from the course of events in the lawsuit
and courts place great weight upon whether plaintiff’s nonsuit closely follows a defendant’s
potentially dispositive motion.” Paternostro v. Reverse Mortg. Sols., No. 05-19-00773-CV, 2020
3
Section 22.8 stated: “In connection with any suit or proceeding, brought by Franchisor . . . or Franchisee to enforce any of their respective rights under this Franchise Agreement, the prevailing party in such suit or proceeding shall be entitled to recover its reasonable attorney’s fees and court costs incurred therein.” [Emphasis added]
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WL 4581665, at *2 (Tex. App.—Dallas Aug. 10, 2020, pet. denied) (mem. op.) (citing Epps, 351
S.W.3d at 870).
A trial court’s finding on whether a party nonsuited to avoid an unfavorable ruling is a
question of fact that may be challenged on the ground that it is not supported by sufficient evidence.
Referente v. City View Courtyard, L.P., 477 S.W.3d 882, 885 (Tex. App.—Houston [1st Dist.]
2015, no pet.). We review the trial court’s ruling on that question for abuse of discretion. See
Collinwood Seniors, Ltd. v. Williams, No. 03-24-00576-CV, 2025 WL 3028591, at *3 (Tex.
App.—Austin Oct. 30, 2025, no pet.) (mem. op.); North Star Water Logic, LLC v. Ecolotron, Inc.,
486 S.W.3d 102, 105 (Tex. App.—Houston [14th Dist.] 2016, no pet.). We review de novo any
legal determinations, such as whether the suit had an arguable basis in law. See North Star Water
Logic, 486 S.W.3d at 105. “[W]e may reverse only if the evidence supported only one decision
and the trial judge made a different one[.]” Hoheisel v. Boyd, No. 02-19-00142-CV, 2020 WL
370570, at *7–8 (Tex. App.—Fort Worth Jan. 23, 2020, no pet.) (mem. op.).
The Epps court held a trial court “should rely as far as possible on the existing record and
affidavits, and resort to live testimony only in rare instances.” Epps, 351 S.W.3d at 870. The court
identified the following nonexclusive factors that could support an inference that a plaintiff has
nonsuited in order to avoid an unfavorable ruling: (1) the timing of a plaintiff’s nonsuit when filed
only after the defendant files a potentially dispositive motion such as a motion for summary
judgment; (2) a plaintiff’s unexcused failure to respond to requests for admission or other
discovery that could support entry of an adverse judgment; (3) a plaintiff’s failure to timely identify
experts or other critical witnesses; and (4) the existence of other procedural obstacles, such as the
plaintiff’s inability to join necessary parties. Id. at 870–71.
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“Implied in each of these factors is that the plaintiff’s nonsuit was necessary to avoid an
unfavorable ruling because the plaintiff’s claims were weak or without merit.” Miramar Dev.,
2014 WL 1614290, at *4. The Epps court explained that the purpose of the rule was to discourage
a plaintiff from pursuing weak claims that should be abandoned and not to penalize a plaintiff for
nonsuiting when that is “precisely what should be done.” 351 S.W.3d at 869. “For instance, a
plaintiff who nonsuits only after ‘discovery reveals previously unknown flaws in the plaintiff’s
claims’ likely has not done so to avoid an unfavorable ruling on the merits.” Miramar Dev., 2014
WL 1614290, at *4 (quoting Epps, 351 S.W.3d at 871). Instead, the decision to nonsuit may reflect
a legitimate litigation strategy that reveals nothing about the merits of a plaintiff’s case and thus
does not warrant a conclusion that a defendant in such a case has prevailed. Id. Accordingly, the
Epps court held that evidence that the lawsuit had merit when filed may indicate the defendant has
not prevailed and is therefore not entitled to attorney’s fees. Epps, 351 S.W.3d at 871.
B. The Parties’ Arguments
In its motion for attorney’s fees, which it filed after the nonsuit, Bucavi asserted G6
nonsuited its claims to avoid an unfavorable ruling, and, as the prevailing party under the Franchise
Agreement, Bucavi was entitled to recoup the attorney’s fees and costs it spent to defend itself.
Bucavi argued G6’s lawsuit lacked merit because it unlawfully terminated the Franchise
Agreement because (1) Bucavi was not in breach, and (2) the notice of default was improper and
offered a flawed opportunity to cure the alleged breach. Bucavi also contended G6’s “anticipated
defeat on the merits was exacerbated by its destruction of documents and the consequences for
doing so.” Bucavi alleged that “[d]espite the extremely deficient document production, [G6]
asserted it had produced everything in its possession, custody, and control. . . . Given that [G6]
originally possessed the requested documents and communications, and [G6] no longer possesses
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the same, [G6] improperly destroyed such documents and communications.” Bucavi argued that
any spoliation sanctions against G6 would “guarantee an unfavorable ruling on the merits[.]”
Finally, Bucavi complained of G6’s alleged failure to engage in discovery and identify critical
witnesses.
G6 filed a response and objection to Bucavi’s motion for attorney’s fees. G6 asserted that
although Bucavi listed several issues that it believed excused its non-performance under the
Franchise Agreement, it did not contest that it failed to fully perform on the parties’ contract, which
formed the basis of G6’s lawsuit. As to Bucavi’s allegations that G6 failed to respond to discovery,
G6 relied on the affidavit of OYO’s General Counsel who stated that OYO assumed control over
all legal matters regarding G6.
During the hearing on Bucavi’s motion, the same arguments were raised and various
exhibits were admitted. 4 Bucavi submitted the affidavit of its principal, Pedro Del Rio, who
outlined Bucavi’s contentions regarding the merits of the lawsuit. Attached to his affidavit were
numerous exhibits.
G6 submitted the affidavit of Wesley Young, G6’s VP of Legal and Compliance, who
stated that G6 had been purchased by OYO on December 17, 2024, and OYO was in the process
of making and had made significant changes to G6 operations, personnel, and outside counsel
affecting business operations and legal matters including the current lawsuit. He also stated that
prior to the sale, he made all legal decisions on G6’s behalf, but after the sale, OYO was
substituting in new counsel of record in the lawsuit and was transitioning all in-house legal work
to its own legal team. Young stated his last day with G6 was February 17, 2025. G6 also submitted
the affidavit of Jonathan Wilfong, OYO’s General Counsel, who stated OYO had assumed control
4
In its order granting the motion for attorney’s fees, the trial court stated it took judicial notice of its entire file.
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over all legal matters regarding G6 and that he authorized the filing of the nonsuit after weighing
the potential benefits of continuing to litigate this matter against the potential costs of doing so and
determining “the costs outweighed the benefits.”
C. Analysis
The trial court made no express findings in its order except to state that Bucavi’s motion
had “merit” and should be granted. We conclude this is an implied finding that G6 nonsuited its
claims to avoid an unfavorable ruling. See Severs v. Mira Vista Homeowners Ass’n, Inc., 559
S.W.3d 684, 711 (Tex. App.—Fort Worth 2018, pet. denied); BBP Sub I LP v. Di Tucci, No. 05-12-01523-CV, 2014 WL 3743669, at *4 (Tex. App.—Dallas July 29, 2014, no pet.) (mem. op.).
We must therefore determine whether this implied finding is supported by the record. See BBP
Sub I, 2014 WL 3743669, at *4.
Applying the Epps factors here, we first note that when G6 filed its notice of nonsuit, no
dispositive motions had been filed, and Bucavi had not obtained rulings on its discovery motions
or motion for sanctions. However, although G6 adduced evidence arguably demonstrating that its
suit had merit when it was filed, it “offered no evidence of any post-filing occurrence (such as a
change in the applicable law or a revelation of a bad fact through discovery) that caused [it] to
non-suit.” See Referente, 477 S.W.3d at 888. “Instead, [G6] adduced evidence that [it] nonsuited
to avoid incurring further litigation costs.” Id.
Second, Bucavi relied heavily on its allegations that G6 failed to respond to its discovery
requests. But Bucavi’s dissatisfaction with the adequacy of G6’s responses does not equate to a
conclusion that G6 was evading discovery. The Texas Supreme Court has recognized that
discovery rules require a party to “make a complete response, based on all information reasonably
available to the responding party or its attorney at the time the response is made.” In re Allied
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Chem. Corp., 227 S.W.3d 652, 657 (Tex. 2007) (orig. proceeding); see also TEX. R. CIV. P. 191.3.
“That [G6’s] answers were incomplete or intentionally evasive is not such an obstruction of
discovery to justify the conclusion that [its claims] lacked merit without more.” Lanfear v.
Blackmon, 827 S.W.2d 87, 90–91 (Tex. App.—Corpus Christi–Edinburg 1992, orig. proceeding).
Furthermore, Bucavi never presented any evidence supporting its contention that G6 spoliated
evidence.
On the other hand, Bucavi submitted uncontroverted evidence that G6 repeatedly failed to
respond to Bucavi’s attempts to resolve the discovery disputes. G6 also failed to respond to
Bucavi’s letter outlining G6’s discovery deficiencies and requesting that G6 produce the requested
documents by July 1.
Third, there is some evidence that G6 failed to identify critical witnesses. Bucavi sent the
deposition notice on December 16 seeking a deposition on January 22, 2025. After OYO purchased
G6 on December 17, the deposition was reset to February 6, 2025. Despite knowing about the
deposition notice and the change in ownership since mid-December 2024 and agreeing to
reschedule the deposition to early February 2025, G6 again resisted the deposition by filing for a
protective order three days before the scheduled deposition. The day after G6 filed its motion for
protection from discovery seeking to postpone the deposition, Bucavi filed its motion to compel
the deposition and illustrated G6’s alleged (1) document destruction problems, (2) denial of a
meaningful opportunity to discover relevant facts, and (3) obstructive conduct. An emergency
hearing was scheduled for February 5, 2025 on both motions, but G6 filed a notice of nonsuit
without prejudice on February 4.
During this time period, G6’s VP of Legal and Compliance, Young, was still working for
G6 and OYO’s General Counsel, Wilfong, was involved in making legal decisions for G6. In its
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motion for a protective order, G6 relied on Young’s affidavit contending his affidavit
“outline[d] . . . the need for additional time to identify the appropriate corporate representative.”
Nowhere in Young’s affidavit does he outline the steps being taken to identify a corporate
representative or explain why such a representative could not be identified since OYO’s purchase
of G6. Wilfong’s affidavit merely stated he authorized the nonsuit because the costs of litigation
outweighed the benefits.
D. Conclusion
“A trial court does not abuse its discretion if it bases its decision on conflicting evidence
and some evidence supports its decision,” but it does abuse its discretion if its decision is “contrary
to the only permissible view of the evidence.” In re Barber, 982 S.W.2d 364, 366 (Tex. 1998)
(orig. proceeding). We conclude that although conflicting inferences may be drawn from the record
before the trial court, the record and the trial court’s interpretation of the record is not contrary to
the only permissible view of the record. The inference that G6 draws (that it nonsuited because the
cost of continuing the litigation outweighed the benefits) may be reasonable, but it is not the only
reasonable inference. A complete reading of the facts also supports the contrary inference, which
is the one that the trial court impliedly drew—that G6 nonsuited to avoid an unfavorable result. In
deciding which inference to choose, a factfinder is free to select between conflicting inferences
drawn from the evidence so long as each of the inferences is reasonable, and “the standard of
review tightly constrains us from second-guessing” that decision. Hoheisel, 2020 WL 370570, at
*7–8. Because the record supports the trial court’s inference that Bucavi was entitled to attorney’s
fees on the ground that it was the prevailing party, we overrule G6’s first issue.
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III. ATTORNEY’S FEES AND COSTS AWARD
The trial court awarded Bucavi $91,586.43 in “reasonable and necessary attorney’s fees
and costs” and conditional appellate fees. It also ordered that post-judgment interest “shall accrue
on all unpaid judgment amounts at the rate of 7.5% per year, compounded annually[.]” In its
second issue, G6 challenges these awards on several grounds. 5
A. Award of Non-Court Costs
The trial court’s award of $91,586.43 in fees was comprised of $85,272.00 in attorney’s
fees and $6,314.43 in additional expenses (the “non-court costs”), which included payments to an
eDiscovery vendor to process and store all collected documents and communications for the case.
G6 first asserts the evidence does not sufficiently support awarding Bucavi the non-court costs
because Bucavi’s only basis for attorney’s fees is the Franchise Agreement, which, according to
G6, specifically limits recovery to attorney’s fees and court costs.
Texas Rule of Appellate Procedure 38.1 requires an appellant’s brief to contain clear and
concise arguments including appropriate citations to legal authority and to the record. TEX. R. APP.
P. 38.1(i). “Mere uttering of brief, conclusory statements unsupported by citation to legal
authorities does not satisfy briefing requirements.” In re A.N.G., 631 S.W.3d 471, 476 (Tex.
App.—El Paso 2021, no pet). “We are . . . not required to perform research nor develop an
argument for an appellant who inadequately prepares an appellate brief.” Id. at 477. An issue may
be waived when an appellant fails to provide citations, argument, or analysis. Ross v. St. Luke’s
Episcopal Hosp., 462 S.W.3d 496, 500 (Tex. 2015). G6’s single citation to authority is to North
Star Water Logic for the proposition that the defendant in that case could not recover post nonsuit
5
Bucavi attached to its motion for attorney’s fees the affidavit of its attorney, Isaac Budnik Villarreal, attached to which were numerous pages of billing records. During the hearing on attorney’s fees, Bucavi submitted a revised affidavit (as Exhibit 5) and the billing records attached to the motion as well as additional records to supplement those records (as Exhibit 5A). Contrary to G6’s contention on appeal, these exhibits were admitted into evidence.
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attorney’s fees under Civil Practice and Remedies Code Chapter 38 when it did not assert a breachof-contract counterclaim. G6 does not elaborate on its argument, nor does it provide authoritative
support for it. Therefore, we do not consider the merits of the inadequately briefed argument, and
we overrule G6’s second issue to this extent.
B. Award of Fees for Non-Testifying Attorneys
During the course of this litigation, Bucavi was represented by multiple attorneys and
different law firms. Villarreal represented Bucavi during the time he worked for two firms: Budnik,
PLLC (“Budnik”) and DuBois Bryant & Campbell LLP (“DBC”). Other legal work was performed
by attorneys at Langley & Banack, Inc. (“Langley”). 6 The fees submitted by Bucavi included the
hours charged by Villarreal, three other attorneys (the “non-testifying attorneys”), two paralegals,
and one legal assistant. 7 In his affidavit, Villarreal included his qualifications but not the
qualifications of the non-testifying attorneys who worked on the case. Villarreal conceded his
affidavit did not include the qualifications of the other attorneys, which he excused because he
contended he billed “more than 80 percent of the time in there.” He stated he was familiar with the
legal services performed by Budnik, DBC, and Langley for Bucavi, the work was not duplicative,
and the rates charged by the firms were “in accordance with the rates charged by other attorneys
of similar experience for similar services in Val Verde County, Texas.” He stated that the services
provided to Bucavi were necessary.
As a general rule, each party must pay its own attorney’s fees. Rohrmoos Venture v. UTSW
DVA Healthcare, LLP, 578 S.W.3d 469, 483 (Tex. 2019). But there are certain circumstances—
6
Villarreal explained that Bucavi started with Langley and, at the time, was represented by Stephen Ah. Villarreal was at another firm, DBC. At some point, Bucavi decided to hire Villarreal instead of Langley. Villarreal left DBC and brought the case with him to his new law firm, Budnick.
7
On the issue of fees and costs, only Villarreal’s affidavit and testimony were before the trial court. Various billing records were attached to his affidavit.
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such as the one presented in this appeal—in which the prevailing party can recover fees from the
opposing party. Id. at 484. “When fee-shifting is authorized, whether by statute or contract, the
party seeking a fee award must prove the reasonableness and necessity of the requested attorney’s
fees.” Id. Under the so-called “lodestar” method, evidence sufficient to support a fee award
includes 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. at 498; Calleja-Ahedo v. Compass Bank, No. 01-15-00210-CV, 2020 WL 3820420, at *7 (Tex.
App.—Houston [1st Dist.] July 7, 2020, no pet.) (mem. op.). “Further, when a party seeks recovery
of attorneys’ fees for work performed by more than one attorney, the party must provide sufficient
evidence to show the services performed by, and the reasonable hour rate for, each attorney.” In
re Est. of Castleman, No. 04-22-00697-CV, 2025 WL 3719983, at *14 (Tex. App.—San Antonio
Dec. 23, 2025, no pet.) (mem. op.).
On appeal, G6 asserts the evidence does not sufficiently support that the fees of the nontestifying attorneys were reasonable and necessary because there is no evidence in the record
concerning the qualifications of the other attorneys. Villarreal’s affidavit identifies by name three
attorneys other than himself who provided legal services for Bucavi, and the billing records
indicate the service rendered followed by the initials of the person providing the service. However,
the record contains no information about the qualifications of the three non-testifying attorneys.
This information is necessary to show that the fees sought for these individuals were reasonable.
Aleman v. Standard Cas. Co., No. 01-23-00572-CV, 2025 WL 2445991, at *24 (Tex. App.—
Houston [1st Dist.] Aug. 26, 2025, no pet.) (mem. op.). In the absence of this information,
Villarreal’s affidavit and the billing records do not establish that the amounts charged by the non- 14 -04-25-00342-CV
testifying attorneys were reasonable and necessary. See id.; Calleja-Ahedo, 2020 WL 3820420, at
*12–13. We conclude that the evidence, while sufficient to support an award of some amount of
attorney’s fees, is not sufficient to support the entire amount of attorney’s fees awarded.
Castleman, 2025 WL 3719983, at *14.
We reach the same conclusion as to the award of non-attorney staff fees. To recover fees
for work performed by non-attorney staff, courts have required evidence in addition to that
required under the lodestar method for fees incurred by attorneys. El Apple I, Ltd. v. Olivas, 370
S.W.3d 757, 763–64 (Tex. 2012). The evidence must show (1) the staff member’s qualifications
to perform substantive legal work; (2) the staff member performed the substantive legal work
under the direction and supervision of an attorney; (3) the nature of the legal work performed by
the staff member; (4) the staff member’s hourly rate; and (5) the total number of hours expended
by the staff member. Id. at 763; In re L.W.G., No. 05-22-00449-CV, 2023 WL 4286016, at *6
(Tex. App.—Dallas June 30, 2023, no pet.) (mem. op.); Calleja-Ahedo, 2020 WL 3820420, at *7.
Non-attorney staff “fees have been denied absent such proof.” El Apple I, 370 S.W.3d at 763.
Although Villarreal’s affidavit provided the billing rates for the paralegals and legal assistant, the
record contains no evidence about their qualifications to perform substantive legal work, that they
were supervised by an attorney, or that the rates were reasonable and necessary for the services
they provided. See id. Accordingly, Villarreal’s affidavit did not contain the information necessary
to affirm the award of fees for their work.
Where, as here, there is some evidence to support the award of attorney’s fees but not
enough to support the full amount awarded, the Texas Supreme Court has remanded for a new trial
on attorney’s fees. See Rohrmoos Venture, 578 S.W.3d at 505–06. We therefore sustain G6’s
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second issue as to Bucavi’s attorney and attorney support staff fees, reverse the trial court’s
judgment as to the fee award, and remand for a new trial on that issue.
C. Conditional Appellate Fees
The trial court awarded Bucavi conditional appellate fees in the amount of $15,000 if G6
filed an unsuccessful appeal in the intermediate court of appeals, and an additional $15,000 if G6
filed a petition for review to the Texas Supreme Court that was denied or otherwise unsuccessful.
On appeal, G6 asserts Villarreal’s affidavit was insufficient to support the award because, other
than describing his appellate clerkship, Villarreal did not reveal (1) any experience with
prosecuting appeals; (2) his familiarity with the reasonable and necessary fees for appellate work;
or (3) the source of his familiarity. Bucavi counters that Villarreal’s clerking experience provides
evidence sufficient for him to estimate the amount of time to be dedicated to the review of the
appellate record, analyzing the issues raised, conducting additional legal research, drafting the
requisite briefing, and preparing for oral arguments.
The lodestar calculation mentioned above “should produce an objective figure that
approximates the fee that the attorney would have received had he or she properly billed a paying
client by the hour in a similar case.” Rohrmoos Venture, 578 S.W.3d at 498. “That is not the
situation with respect to contingent appellate fees, which have not yet been incurred and thus must
be projected based on expert opinion testimony.” Yowell v. Granite Operating Co., 620 S.W.3d
335, 355 (Tex. 2020). “At the point when fees are awarded by the trial court, any appeal is still
hypothetical.” Id. “There is no certainty regarding who will represent the appellee in the appellate
courts, what counsel’s hourly rate(s) will be, or what services will be necessary to ensure
appropriate representation in light of the issues the appellant chooses to raise.” Id. “[T]his
uncertainty does not excuse a party seeking to recover contingent appellate fees from the need to
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provide opinion testimony about the services it reasonably believes will be necessary to defend the
appeal and a reasonable hourly rate for those services.” Id.
In his affidavit, Villarreal stated that he formerly clerked for a federal district judge and for
a justice on the Texas Supreme Court before going into private practice. In private practice, he
“handled a wide range of business litigation matters[.]” Villarreal listed the type of work typically
involved in defending and responding to any appeal filed by G6 in the court of appeals or the Texas
Supreme Court, including, among other tasks, reviewing the appellate record, analyzing the issues
raised by G6, conducting legal research, drafting and filing responsive briefing, and preparing for
and potentially participating in oral argument. Based on his hourly rate of $400 per hour, he
estimated an appeal to the court of appeals would require at least 37.5 hours of attorney time,
resulting in a fee estimate of $15,000, exclusive of any other fees or costs. Based on his hourly
rate of $400 per hour, he estimated an appeal to the Texas Supreme Court would require at least
37.5 hours of attorney time, resulting in a minimum fee estimate of $15,000.
There is no dispute that Villarreal is familiar with the issues in this lawsuit. His affidavit
gives a detailed explanation of the amount and type of appellate work that is reasonable and
necessary to defend any appeal at all stages of the appellate process and states the number of hours
he believes would be necessary, along with what he considers a reasonable rate for the work. We
hold the evidence is sufficient proof to support the contingent appellate fees awarded by the trial
court. See Trujillo v. Shafaii Invs., Ltd., No. 01-22-00819-CV, 2024 WL 2001612, at *12–14 (Tex.
App.—Houston [1st Dist.] May 7, 2024, pet. denied) (mem. op.); QJD Peking Duck Rest., Inc. v.
TCP Spectrum Partners, Ltd., No. 01-22-00545-CV, 2023 WL 5436907, at *4 (Tex. App.—
Houston [1st Dist.] Aug. 24, 2023, no pet.) (mem. op.). We overrule G6’s second issue to this
extent.
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D. Post-Judgment Interest
The trial court ordered that post-judgment interest “shall accrue on all unpaid judgment
amounts at the rate of 7.5% per year, compounded annually[.]” G6 asserts the trial court’s order
should have specified that post-judgment interest on the conditional appellate fees would run from
the date of the appellate court’s judgment. G6 contends that, if this court affirms the award of
conditional attorney’s fees, it should modify the trial court’s order. We agree.
“[A]n award of conditional appellate attorney’s fees to a party is essentially an award of
fees that have not yet been incurred and that the party is not entitled to recover unless and until the
appeal is resolved in that party’s favor.” Ventling v. Johnson, 466 S.W.3d 143, 156 (Tex. 2015).
Because an award of appellate attorney’s fees depends on the outcome of the appeal, “it is not a
final award until the appeal is concluded and the appellate court issues its final judgment.” Id.
(internal quotation marks omitted). Accordingly, “an award for conditional appellate attorney’s
fees accrues postjudgment interest from the date the award is made final by the appropriate
appellate court’s judgment.” Id. We therefore remand to the trial court with instructions to modify
its order to clarify that Bucavi is awarded post-judgment interest at the rate of 7.5% per year,
compounded annually, on the attorney’s fees related to an appeal to an intermediate court of
appeals, running from the date of the opinion and judgment; and if G6 appeals to the Texas
Supreme Court and does not prevail, Bucavi is awarded post-judgment interest at the rate of 7.5%
per year, compounded annually, on the attorney’s fees related to an appeal to the Texas Supreme
Court, running from the date of that Court’s judgment. We sustain G6’s second issue to this extent.
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IV. CONCLUSION
We overrule G6’s first issue because the evidence supports the inference that Bucavi was
the prevailing party; therefore, the trial court did not abuse its discretion by granting Bucavi’s
motion for attorney’s fees.
For the reasons stated above, we sustain in part and overrule in part G6’s second issue. We
reverse that portion of the $91,586.43 award that comprises attorney’s fees and remand the part of
the case involving attorney’s fees—including those of Villarreal, the non-testifying attorneys, and
the non-attorney support staff—for a new trial on that issue. We reverse the post-judgment interest
on any conditional awards subsequent to entry of the trial court’s order and remand to the trial
court with instructions to modify its order to clarify that post-judgment interest on conditional
appellate attorney’s fees should accrue from the date the award is made final by an appellate court’s
opinion and judgment. We affirm the order in all other respects.
Lori I. Valenzuela, Justice
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