Unreported / Non-Citable
Background
Richard Stephen Calkins and Michael Easton sued G. Wesley Urquhart, Mary Elizabeth Urquhart, Urquhart’s law firm, and others over conduct connected to earlier guardianship and probate litigation. The defendants moved to dismiss under the Texas Citizens Participation Act. In prior appeals, the First Court of Appeals directed dismissal with prejudice and required an award of costs, fees, expenses, and sanctions. It later remanded for the trial court to determine incurred and conditional appellate attorney’s fees.
After remand, Calkins and Easton challenged attorney Kenneth Zimmern’s authority to represent the appellees, contended that later events had mooted the dispute, and requested a jury trial on attorney’s fees. Following a nonjury hearing, the trial court awarded appellate fees and incorporated amounts previously affirmed by the appellate court. Calkins and Easton appealed.
The Court’s Holding
The First Court of Appeals affirmed. It held that the case was not moot and that the appellees retained standing because a real controversy remained over the fee award. The withdrawal of Zimmern from representing another party, allegations that another party paid certain legal bills, and the later tax forfeiture of the law firm’s charter did not eliminate that controversy. The charter issue concerned capacity rather than standing and did not prevent continuation of an action begun before forfeiture.
The court also upheld the denial of the Rule 12 motion to show authority. Urquhart’s declaration and his prior personal appearances supported the finding that Zimmern’s representation was authorized, and the appellants did not demonstrate reversible harm. The trial court was obligated to follow the appellate mandate and determine the incurred and conditional appellate fees.
Finally, the court held that any error in denying a jury trial was harmless. The appellants’ fee expert offered only unexplained, conclusory opinions about the reasonableness and accuracy of Zimmern’s billing records. Because that testimony was no evidence and created no material factual dispute, a directed verdict would have been proper.
Key Takeaways
- A dispute over attorney’s fees required by an earlier TCPA mandate remained justiciable despite later changes involving counsel and a law firm’s corporate status.
- Forfeiture of corporate privileges generally concerns capacity, not standing, and did not bar continuation of this previously filed action.
- Conclusory expert criticism of attorney billing records does not create a fact issue, making any erroneous denial of a jury trial harmless when no other contrary evidence exists.
Why It Matters
The decision underscores that a trial court must comply strictly with an appellate mandate and may not use collateral disputes over representation or capacity to avoid deciding the issue remanded. It also illustrates the evidentiary burden for contesting attorney’s fees: an expert must explain and substantiate objections to the claimed fees rather than merely label them unreasonable or inaccurate.