Justice David Gunn
In a concurring opinion in an appeal involving a dispute over attorney’s fees, Justice David Gunn urged the intermediate courts of appeals to review the legal sufficiency of an attorney’s fee award based on the record rather than whether the statute authorizing the fee is mandatory or discretionary.
Anh Doan Vo v. Alexander Nguyen (No. 01-23-00559-CV; April 24, 2025) arose from an action in which Vo sought a temporary ex parte protective order and final protective order, alleging that Nguyen abused her over a three-year period. The trial court denied Vo’s application for the protective order and ordered Vo to pay Nguyen’s $6,000 in attorney’s fees. Observing that the Family Code section authorizing attorney’s fees in family violence cases is discretionary (“[t]he court may assess reasonable attorney’s fees”) is discretionary, the court determined that the record did not contain sufficient detail about “the particular services Nguyen performed, when the services were performed, or the reasonable hourly rate for performing these services” (citing Rorhmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019) and Walsh v. Gonzalez, 01-21-00729-CV, 2023 WL 4110851 (Tex. App.—Houston [1st Dist.] June 22, 2023, no pet.)). Finding the evidence insufficient to support the award, the court ruled that the trial court abused its discretion and modified the trial court order to vacate the award.
In the interest of harmony between the two Houston courts of appeals, Justice Gunn went along with the majority but wrote separately regarding the standard for reviewing the factual and legal sufficiency of an award of attorney’s fees. The Houston courts of appeals and some others have taken the position that if the authorizing statute is discretionary and the evidence supporting the award is insufficient, the court must reverse and render judgment of no fee. On the other hand, if the statute is mandatory but the evidence is insufficient, the court may remand to the trial court to allow the party seeking fees to do a better job with the evidence.
As Justice Gunn expressed “real doubt” about the mandatory/discretionary test. “If the trial judge exercised discretion to award fees,” he queried, “why should it matter that the judge also possessed the power to go the other way? By the time of the appeal, the trial judge has long ago ruled “Thou shalt recover fees,” so examining the authority for that ruling seems pretty unedifying. A claimant with a statutory right to a fee award looks just like a claimant with a judicial order commanding a fee award.” It would be one thing, Justice Gunn continued, if the claimant offered no evidence to support the award. In that case, “nobody would say that the claimant gets a second bite at the apple.” But if the claimant offers evidence but without adequate detail, the court should treat it just like any other sufficiency issue. Justice Gunn likened this situation to segregation, in which the court of appeals “typically remand[s] … rather than killing the claim” (citations omitted). He added that “[t]reating a case of inadequate detail as its own species of legal insufficiency would fit with Rohrmoos, in which SCOTX determined that the record did not provide enough details supporting an award of attorney’s fees and remanded to the trial court for a redetermination of fees.
Justice Gunn thus urged the court to remand “when the only problem amounts to a lack of detail … And in any event, the remand-vs-render decision should depend on the state of the record, rather than the happenstance of how the fee statute reads.” In our view, this is undoubtedly the most sensible approach. If a trial court has already determined that a fee award is appropriate, it doesn’t make much sense to refer back to the “may” or “shall” in the statute when considering a sufficiency challenge. The real issue is whether the claimant met its burden of specificity, as in every other claim.
