Beth M. Johnson
Appellate Attorney’s Fee Awards
Updated: Jan 31, 2022
Appellate courts generally do not award fees. For an appellee to be awarded fees, the appellee generally must file a cross-appeal because the appellee would be asking for greater relief than what was received in the trial court. Souffer v. Levine & Father Operating Corp., No. 05-19-00001-CV, 2020 WL 3410636, at *4 (Tex. App.—Dallas, 2020, no pet.) (mem. op.); Tex. R. App. P. 25.1(c).
If an appellant appeals and wins, the appellate court often will remand the case to the trial court, which might open up a small door to request fees (or additional fees) from the trial court. However, if the appellant appeals and loses, the case is over. There are no more hearings. There are no more opportunities to ask for fees because the trial court’s plenary power expired long before the appellate court issued its opinion. And a client who was perfectly satisfied with the judgment affirmed by the appellate court just shelled out thousands of dollars to defend an appeal rather than moving on with life.
So, if an appellee wants to ask for appellate attorney’s fees, that request must be made from the trial court before the appeal. Ideally, if an appeal is somewhat foreseeable, the trial attorney will ask for fees at final trial and have that judgment included in the final order along with any other awards for attorney’s fees. Plus, there is a possibility that an appeal could be dissuaded by the knowledge that an unsuccessful appeal would lead to a payment of fees, which could be a relief to your client if she is satisfied with the final judgment.
Sufficiency of the Evidence
Just like any other attorney’s fee award, the award must be supported by sufficient evidence. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 488–505 (Tex. 2019); Yowell v. Granite Operating Co., 620 S.W.3d 335, 355 (Tex. 2020); Porter v. Porter, No. 04-20-00229-CV, 2021 WL 2117923 (Tex. App.—San Antonio 2020, no pet.) (mem. op.). However, unlike the attorney’s fees already incurred during the pendency of the underlying case, the specific amount of appellate attorney’s fees is necessarily hypothetical in nature. Yowell, 620 S.W.3d at 355. Nevertheless, some evidence must be presented to support the necessity and reasonableness of the requested amount. Id.
If appellate counsel is already retained, that attorney can testify in the trial court as to the reasonableness and necessity of the fees. Debrock v. Debrock, No. 03-21-00308-CV, 2021 WL 5498757 (Tex. App.—Austin 2021, no pet.) (mem. op.). However, if appellate counsel is not yet retained, a trial attorney’s testimony of a reasonable billing rate and a projected reasonable amount of time for each stage of an appeal should be sufficient to support an award of conditional appellate attorney’s fees. Bennett v. Zucker, 05-19-01445-CV, 2021 WL 3701365, at *12 (Tex. App.—Dallas 2021, no pet. h.) (mem. op.); see Yowell v. Granite Operating Co., 620 S.W.3d 335, 355 (Tex. 2020); cf. KBIDC Invs., LLC v. Zuru Toys, Inc., No. 05-19-00159-CV, 2020 WL 5988014, at *24 (Tex. App.—Dallas 2020, pet. filed) (mem. op.) (evidence of appellate attorney's fees was insufficient where testimony did not “provide the reasonable hourly rate for any of the reasonable and necessary services for the appeals process”).
The testimony should include the nature of the contested issues and the estimated time to review the record, review the appellant’s brief, research relevant legal authority, and draft a response. You may also include estimates for drafting a sur-reply, preparing for and attending oral argument, responding to a motion for rehearing, and defending a petition to the Texas Supreme Court.
In nearly every case, an award of appellate attorney’s fees must be made conditional on the appellant’s unsuccessful appeal. In re Marriage of Comstock, __ S.W.3d __, No. 01-19-00722-CV, 2021 WL 4466012, at *18 (Tex. App.—Houston [1st Dist.] 2021, no pet.). A party must not be penalized for a successful appeal. Id.
However, several courts have found that appellate fee awards in SAPCRs need not be conditional because making the award conditional “may defeat the ability of the parent who prevails in the trial court to defend the order being appealed as one that is in the best interest of the child.” McCain v. McCain, __ S.W.3d __, No. 03-19-00751-CV, 2021 WL 4995499, at *4 (Tex. App.—Austin 2021, no pet.) (citing In re Jafarzadeh, No. 05-14-01576-CV, 2015 WL 72693, at *2 (Tex. App.—Dallas 2015, orig. proceeding) (mem. op.)); see also In re Mansour, 630 S.W. 3d 103, 109 (Tex. App.—San Antonio 2020, orig. proceeding); see also Davenport v. Davenport, No. 01-15-01301-CV, 2016 WL 7011406, at *8 n.7 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (mem. op.) (acknowledging exception to general rule but declining to apply it when fees were not awarded in temporary orders under Section 109.001); but seeHalleman v. Halleman, Nos. 02-11-00238-CV, 02-11-00259-CV, 2011 WL 5247882, at *5 (Tex. App.—Fort Worth 2011, no pet.) (mem. op.) (consolidated appeal and orig. proceeding) (modifying trial court’s temporary order awarding appellate attorney’s fees under Section 109.001 to make it contingent on receiving party’s success on appeal); Marcus v. Smith, 313 S.W.3d 408, 418 (Tex. App.—Houston [1st Dist.] 0209, orig. proceeding) (modifying trial court’s unconditional award of appellate attorney's fees under Section 109.001 to make them contingent upon successful appeal).
Temporary Orders Pending Appeal
If appellate attorney’s fees were not requested at trial, a request can be made once a notice of appeal is filed. However, the deadlines on both the parties and the trial court are very tight—which is another reason why it is better to ask at trial.
A party can seek temporary orders pending appeal under Texas Family Code Section 6.709 (divorce) or Section 109.001 (SAPCR). The request must be made by the same deadline to file a notice appeal (or cross-appeal, as applicable). Tex. Fam. Code §§ 6.709(h), 109.001(b-1). A notice of cross-appeal must be filed by the same deadline as a notice of appeal or within 14 days after a notice of appeal is filed, whichever is later. Tex. R. App. P. 26.1(d). The trial court only retains authority to render temporary orders pending appeal until 60 days after the last notice of appeal was filed. Tex. Fam. Code § 6.709(i), 109.001(b-2).
In temporary orders pending appeal, to support an award for appellate attorney’s fees in a divorce, a party must show that the order is “equitable and necessary for the preservation of the property and for the protection of the parties during an appeal.” Tex. Fam. Code § 6.709(a). In a SAPCR, the party must show that the order is “necessary to preserve and protect the safety and welfare of the child during the pendency of an appeal.” Tex. Fam. Code § 109.001(a) (emphasis added). Note that the standard is not “best interest of the child.” Id.; In re Jenkins, No. 10-21-00169-CV, 2021 WL 4080260, at *3 (Tex. App.—Waco 2021, orig. proceeding) (mem. op.). Additionally, in a SAPCR, the court cannot grant a temporary order pending appeal simply to “level the playing field” if one party’s income exceeds the other’s. Jenkins, 2021 WL 4080260, at *3.