Fleming & Associates, L.L.P. (n/K/A Fleming, Nolen & Jez L.L.P.) and George Fleming v. Charles Kirklin, Stephen Kirklin, Paul Kirklin
14-15-00238-CV
| Tex. App. | Aug 31, 2015Background
- George Fleming sued the Kirklin defendants (Charles, Stephen, Paul Kirklin, and The Kirklin Law Firm, P.C.); the defendants moved to dismiss under the Texas Citizens Participation Act (TCPA).
- The trial court found $53,950 in reasonable attorneys' fees (as testified by Charles Kirklin) and stated $75,000 would be appropriate sanctions, but awarded zero in attorneys' fees and zero in sanctions.
- The Kirklin Law Firm, P.C. submitted evidence that it incurred and was billed $53,950 for legal services performed by the Kirklin attorneys; corporate representation was by licensed attorneys who are the firm’s principals.
- Fleming argued defendants defended pro se (so incurred no fees), that fee entries should be reduced for limited success, and that segregation between plaintiffs/defendants was inadequate.
- The cross-appellants (Kirklin defendants) contend the TCPA mandates some award of reasonable attorneys’ fees and sanctions when dismissal is granted and that fees were properly segregated and proven.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether The Kirklin Law Firm, P.C. "incurred" attorneys' fees under TCPA | Fleming: Defendants effectively defended pro se; therefore no incurred fees | Kirklins: A corporation cannot appear pro se; the firm contracted with and was billed for attorneys' services, proving incurred fees | Court concluded the firm presented unrebutted evidence that it incurred fees (corporate representation by licensed attorneys supports fee liability) |
| Whether trial court abused discretion by awarding zero attorneys' fees after finding fees reasonable | Fleming: Zero award appropriate given arguments about limited success and claimed pro se status | Kirklins: TCPA requires awarding court costs/reasonable attorney's fees when dismissal granted; awarding zero despite evidence is abuse of discretion | Court held that when evidence supports incurred fees, statute does not permit awarding zero; some fee award is mandatory (trial court may adjust amount downward but not to zero) |
| Whether segregation of fees was required among Kirklin defendants and between plaintiffs | Fleming: Fees should be reduced for limited success and for lack of segregation as to plaintiffs | Kirklins: Fees were performed for all Kirklin defendants (intertwined) and were segregated as to the two Fleming plaintiffs; only fees for George Fleming were sought | Court accepted that intertwined work need not be segregated among defendants and that the Kirklins segregated fees as between the two Fleming plaintiffs, so segregation requirement satisfied |
| Whether sanctions are mandatory and whether zero sanctions was an abuse | Fleming: Prior lawsuits characterization undermines sanctions or amount | Kirklins: TCPA mandates sanctions sufficient to deter; zero sanctions violates statute and is abuse | Court reasoned sanctions must be awarded when dismissal under TCPA is ordered and an award of zero is inconsistent with statutory deterrence purpose; some sanctions required though amount is discretionary |
Key Cases Cited
- Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865 (Tex. App.--Dallas 2014) (affidavit and billing evidence can establish that party incurred attorney's fees under TCPA)
- Garcia v. Gomez, 319 S.W.3d 638 (Tex. 2010) (circumstantial evidence of attorney activity supports inference that attorney fees were incurred)
- Air Routing Intern. Corp. v. Britannia Airways, Ltd., 150 S.W.3d 682 (Tex. App.--Houston [14th Dist.] 2004) (interrelated claims may make fee allocation inseparable among parties)
- Dell Dev. Corp. v. Best Indus. Unif. Supply Co., Inc., 743 S.W.2d 302 (Tex. App.--Houston [14th Dist.] 1987) (corporations cannot appear pro se and must be represented by licensed counsel)