On Wednesday, the Fourth Court of Appeals ruled that Bill Miller Bar-B-Q Enterprises Ltd. was “unconstitutionally deprived” of its right to have a jury decide how much the other party in a wrongful termination lawsuit should be awarded for attorney’s fees.
In so doing, the Fourth Court admitted that it disagreed with the El Paso Court of Appeals in Union Pac. R.R. Co. v. Loa, 2004; and with the Corpus Christi Court of Appeals in Borg-Warner Protective Servs. Corp. v. Flores, 1997.
This reminds me of the Charles Schwab “WHY” commercial where the little boy asks his dad questions about their broker.
“What if you’re not happy? Does he have to pay you back?” the boy asks. The father says, ‘Nope.” And the boy asks, “why not?” The father says, “It doesn’t work that way.” And the son gets the last word, “Why not?” The narrator then asks the audience if they’re asking enough questions.
Here, we have a situation where an appellate court is basically asking why juries shouldn’t always be able to decide attorney’s fees, at least where the Texas Labor Code is concerned. That, I submit, is a radical idea. But unlike the question posed by the Charles Schwab cherub, it’s probably not a good one.
Chief Justice Catherine Stone wrote the Oct. 29 opinion. Unlike the state I live in, if there is a dissent on the panel, it does not necessarily come out the same day, so I can never conclude that an opinion is unanimous. But the other justices were Karen Angelini and Rebeca C. Martinez.
Before I go any further, the lay reader should be put on notice that this column is not about Bill Miller’s dispute with a former employee. It’s about this decision to reverse Bexar County Court at Law No. 7 Judge Irene Rios and remand the case for a new trial limited to the issue of attorney’s fees.
You should know that in federal courts and in most states and in most situations, juries do not decide the reasonableness and amount of attorney’s fees. It’s generally understood by the legal profession that judges are perfectly capable of figuring out whether the claimed billable hours on a case are reasonable. After a jury has done its duty by hearing the merits of a lawsuit, and after returning a verdict, why would you then burden them with having to sift through the accounting and the expert testimony involved in calculating the just earnings of the prevailing party’s counsel?
That’s just messed up. And to make it even weirder, the Fourth Court did not explicitly put the Texas Supreme Court on notice that it is in conflict with its sister courts. I’m used to seeing language to the effect that “we have a conflict” and this raises a question that our state supreme court should probably look at. I guess I just don’t understand how things are done here. There is clearly now a conflict and the highest civil court should weigh in.
Bill Miller Bar-B-Q Enterprises Ltd. v. Faith H. Gonzales
In January 2013, a jury awarded Gonzales $30,000 in back pay and compensatory damages because she was fired over her opposition to and complaints about discriminatory conduct. Throughout the spring, there followed hearings with evidence and argument about how much her lawyer should get paid. Bill Miller said it was entitled, by section 21.259 of the Texas Labor Code, to have a jury decide his fee.
Judge Rios disagreed, did the math and awarded Gonzales’ attorney $60,975.
Justice Stone did not easily waltz her way to this reversal. She admitted that, “Bill Miller Bar-B-Q does not cite any authority that a right to a jury trial on the amount of attorney’s fees to be awarded existed at the time the Texas Constitutional was adopted. Furthermore, no right to recover attorney’s fees existed at common law. Accordingly, Bill Miller Bar-B-Q has not met its burden on demonstrating that section 21.259 would violate Article I, Section 15 if the statute were construed to allow the trial court to determine the amount … “
Stone then says the current constitution extends the right to a jury to the “trial of all causes,” providing: “In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury … “
“Because the underlying lawsuit is a ’cause,’ Bill Miller Bar-B-Q is constitutionally entitled to a jury trial on all contested issues of fact,” Stone said.
I wonder if most lawyers read ’cause’ here the way I do, meaning a ’cause of action,’ aka, the law that one travels under in order to prove standing in a court. It’s the statute or common law that the judiciary follows in order to determine whether it has jurisdiction to hear a case at all. For example, was the party a victim of fraud under a deceptive practices act, or a victim of discrimination under a labor and employment act.
Traditionally, judges determine the entitlement to attorney’s fees and costs after a trial. But Stone has divided this most common of practices over the word “and.” Costs are fees required by law to be paid to the courts or its officers, Stone said, but attorney’s fees are amounts owned to one’s own lawyers.
“This general concept is recognized by the Texas Legislature in the statutory provisions analyzed in the cases cited by Bill Miller Bar-B-Q which permit the trial court to award attorney’s fees and costs,” Stone wrote, and the word in bold in that sentence was her doing.
“The question then becomes whether the Texas Legislature’s failure to expressly distinguish between attorney’s fees and costs in section 21.259(a) must be construed as allowing the trial court to determine the reasonableness of the amount of attorney’s fees because section 21.259(a) awards the attorney’s fees as costs,” she then reasoned, and the word in bold here is my doing.
Question: How does she know the Legislature “failed” to distinguish? Maybe the Legislature deliberately lumped them together.
Stone gives three reasons to explain why she’s going to help the Legislature interpret its law. One, the section is silent on who determines attorney’s fees. Two, the amount of costs is fixed by statute, but the amount of attorney’s fees is not. Three, construing the section to require that a jury determine the attorney’s fees “avoids any possible constitutional infirmity.”
I’ll defer to wiser men than I for the last word.
Gonzales’ attorneys, in their brief for the appellee, said, “Historically, Texas courts have interpreted Texas Labor Code section 21.259 to allow the trial judge to determine the amount of reasonable and necessary attorneys’ fees in cases brought under the Texas Commission on Human Rights Act. Significantly, all other Texas appellate courts that have reviewed this issue have affirmed that it is appropriate for the Trial Court to determine the amount of reasonable and necessary attorneys’ fees in cases brought pursuant to the Texas Commission on Human Rights Act. In this way, Texas appellate courts have applied the clear language of Texas Labor Code section 21.259 that allows for the award of attorneys fees as costs to prevailing employment law plaintiffs but also to remain consistent with federal law, i.e., Title VII of the Civil Rights Act of 1964 as amended. Moreover, interpreting Texas Labor Code section 21.259 in this manner does not render the section unconstitutional under Article I, Section 15 or Article V, Section 10 of the Texas Constitution.
“The record reflects that Appellee did present sufficient evidence to support the Trial Court‟s award of attorney‟s fees. The record established that Appellee supported her request for attorney‟s fees with comprehensive supporting affidavits and itemized billing statements. Appellee also presented expert testimony that was subject to extensive cross-examination at hearing, to support her request for attorneys’ fees.
“On the other hand, the record evidences that Appellant failed to provide the trial court with any controverting evidence regarding Appellee’s request for attorneys’ fees. Nor did Appellant request findings of fact and conclusions of law
from the Trial Court regarding the court’s award of attorneys’ fees.”
Alan Braun and Mark Anthony Acuna at the Davis Law Firm in San Antonio represented Gonzales.
Ryan Christopher Reed, Leslie Sara Hyman, Randall A. Pulman of Pullen, Benson & Jones in San Antonio, and Barry A. McClenahan of The McClenahan law Firm in San Antonio represented Bill Miller Bar-B-Q.