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33 S.W.3d 282

Lesikar v. Rappeport

Texas Court of Appeals, 6th District (Texarkana) · decided 2000-12-06

Cited by 76 later decisions — most recently June 2017 · most notably American Home Assurance Company v. United Space Alliance Llc (2004), Mowbray v. Avery (2002)

4 federal appellate · 1 district · 54 state decisions

Relies on Stewart Title Guaranty Co. v. Sterling

Good law ✅— No negative treatment on recordhow we know

Decided 2000-12-06

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¶1ON MOTION FOR REHEARING

CORNELIUS, Chief Justice.

¶2S. Gary Werley and the law firm of Bishop, Payne, Williams & Werley, L.L.P. (collectively, Werley) have filed a motion for rehearing in which they contend that we should clarify our judgment to reflect that no costs on appeal are assessed against Werley. The judgment in the case reads, “It is further ORDERED that the parties each pay one half of the costs incurred by reason of this appeal.” We intended that costs be divided equally between Jenny and the Lesikars. We therefore modify our judgment to provide that Jenny Rappeport and the Lesikars each pay one half of the costs incurred by reason of this appeal.

¶3The Lesikars have also filed a motion for rehearing in which they contend we erred in holding that they failed to preserve error on the issue of attorneys’ fees. We held that the Lesikars waived any error with respect to attorneys’ fees by failing to object to Jenny’s attorney’s testimony on the ground that she failed to segregate the fees among her various claims. We also found that they failed to object to the submission of the broad attorneys’ fee question. We further held that the trial court could only disregard the jury finding if it was unsupported by the evidence or was immaterial, neither of which we found.

¶4*322In their motion for rehearing, the Lesi-kars cite to the reporter’s record showing where they objected to the jury charge. Nevertheless, their contention on rehearing must be viewed within the context of their appeal. In their initial brief on appeal, they contended there was no evidence or insufficient evidence that Jenny’s claims were sufficiently intertwined to avoid the requirement that attorneys’ fees be segregated among her various claims. Jenny responded that the Lesikars failed to preserve error because they failed to object to the evidence or to the jury charge. In their reply brief, the Lesikars reasserted their no evidence and insufficient evidence contentions with citations to their post-verdict and post-judgment motions, apparently believing that the jury’s verdict on attorneys’ fees was immaterial without evidence that Jenny’s claims were intertwined, and thus their motions preserved error. But unless the Lesikars brought to the trial court’s attention Jenny’s responsibility to segregate her attorneys’ fees or to demonstrate that her claims were too intertwined to segregate them, it does not matter whether there was evidence that her claims were intertwined. Therefore, the Lesikars’ argument on rehearing (that they objected to the jury charge) is at variance with their argument on appeal (that there was insufficient evidence that Jenny’s claims were intertwined).

¶5Moreover, the Lesikars had the burden to point out specifically in the record where they made the proper objection. Tex.R.App. P. 38.1(f), (h). The Lesikars’ citations to the record were not before this Court on appeal. The appeal involved twenty-six issues, seven briefs totaling over 260 pages, sixteen volumes of the clerk’s record, and twenty-five volumes of the reporter’s record. Without proper citation to the record, an objection to the charge is difficult to find in the reporter’s record, which is not indexed by objection or otherwise. Thus, the issue was improperly briefed.

¶6Even if we were to consider their citations, Jenny’s contention that the Lesikars’ objection was not plainly stated is persuasive. The Lesikars contend they objected on the grounds (1) that Jenny failed to segregate her request for attorneys’ fees, and (2) that there was no evidence regarding segregation. Reviewing their citations to the record, we agree they objected that there was no evidence regarding segregation. But they also were required to object to the broad-form nature of the attorneys’ fees question to preserve error on their contention that the jury charge should have segregated the fee request among the claims. The only statement by their attorney that can be construed as an objection to the broad-form nature of the jury charge came when he stated: “As a result, there is no evidence to submit this question to the jury. And the question itself is not phrased to cover attorneys’ fees that would be compensable as a matter of statute.” (Emphasis added.) The first sentence is clearly a no evidence objection. The second sentence is an objection to the phrasing of the jury charge, but arguably would not have put the trial court on notice of the nature of the objection.

¶7The objection here contrasts with the objection lodged in Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.1991), where Stewart Title objected, “[TJhere has been no breakdown or allocation to the— of the fees incurred in connection with this defendant, as well as numerous other defendants, in order to show what is alloca-ble as a reasonable amount for the prosecution of the suit against the defendant.” In that case, the objection notified the trial court of Stewart Title’s request that the jury be charged to segregate attorneys’ fees between defendants. In this case, the Lesikars’ attorney’s statement must be read in the context of their overall objection, the thrust of which was clearly a complaint about the sufficiency of the evidence regarding whether Jenny’s claims were sufficiently intertwined to avoid the segregation requirement. That objection *323was insufficient to notify the trial court that Jenny was required to prove that her claims were intertwined in the first place, or that the trial court was required to charge the jury to segregate attorneys’ fees among Jenny’s claims. We overrule the Lesikars’ motion for rehearing.

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