Varner v. Cardenas, 218 S.W.3d 68 (Tex. 2007). · Go Syfert
Varner v. Cardenas, 218 S.W.3d 68 (Tex. 2007). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases, 2016–2023 · …overcome any and all affirmative defenses ⚠ not in text
141 citation events (141 in the last 25 years) across 9 distinct courts.
Strongest positive: Champe Carter, Erin Baily Carter, Paige Parker and Melanie Parker v. Gregory Robert Ball (texapp, 2019-10-09)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Champe Carter, Erin Baily Carter, Paige Parker and Melanie Parker v. Gregory Robert Ball
Tex. App. · 2019 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
we decline the invitation to allow two trials on attorney's fees when one will do.
examined Cited as authority (verbatim quote) Central Austin Apartments, LLC UP-32nd Street, LLC And UP-32nd Street Hospitality, LLC// East Avenue Property Owners' Association, Inc. and UP Austin Holdings, LP and UP Austin Land Holdings, LP v. UP Austin Holdings, LP UP Austin Land Holdings, LP And East Avenue Property Owners' Association, Inc.// Central Austin Apartments, LLC UP-32nd Street, LLC And UP-32nd Street Hospitality, LLC (3×) also: Cited as authority (rule), Cited "see"
Tex. App. · 2014 · signal: see also · quote attribution · 1 verbatim quote · confidence high
a prevailing party must segregate recoverable from unrecoverable attorney's fees in all cases.
cited Cited as authority (rule) Occidental Petroleum Corporation v. Wells Fargo Bank, N.A.
S.D. Tex. · 2023 · confidence medium
Varner v. Cardenas, 218 S.W.3d 68, 69-70 (Tex. 2007).
discussed Cited as authority (rule) Transverse v. IA Wireless Srv
5th Cir. · 2021 · confidence medium
Although the abstract claim elements are different, the district court believed that each disclosure claim was subject to the same proof, given that all turned on the 23 Kinsel v. Lindsey, 526 S.W.3d 411, 427 (Tex. 2017). 24 Tony Gullo Motors, 212 S.W.3d at 313 ; Kinsel, 526 S.W.3d at 427 . 25 Tony Gullo Motors, 212 S.W.3d at 313 . 26 Transverse I, 617 F. App’x at 274, 280-82 . 27 Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (per curiam). 9 Case: 20-50271 Document: 00515791655 Page: 10 Date Filed: 03/23/2021 No. 20-50271 legal significance of IWS’s alleged disclosure of meeting notes …
discussed Cited as authority (rule) Young Yoo, Irving SuperMart, L.L.C. and Acacia Las Lomas, L.L.C. v. A-1 Marketing, Inc.
Tex. App. · 2020 · confidence medium
Tony Gullo Motors I, L.P., 212 S.W.3d at 314 ; Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (per curiam) (work to defeat counterclaims premised on the same transaction absence of an appellant’s argument does not raise the argument or entitle appellant to assert that argument for the first time in his reply brief.”). –14– at issue in the claim which supported fees and by which defendants sought to reduce recoverable amount on claim for which fees were recoverable, required no segregation).
discussed Cited as authority (rule) Hossein S. Namdarkhan and Bardia Namdarkhan v. Glast, Phillips & Murray, P.C., Mark C. Enoch, Mark C. Enoch, PC, and Matthew Enoch
Tex. App. · 2020 · confidence medium
Varner, 218 S.W.3d at 69 (work to defeat counterclaims premised on the same transaction at issue in the claim which supported fees and by which defendants sought to reduce recoverable amount on claim for which fees were recoverable, required no segregation); Hagan v. Pennington, No. 05-18-00010-CV, 2019 WL 2521719 , at *9 (Tex. App.—Dallas June 19, 2019, no pet.) (mem. op.) (“When a defendant alleges the same theory as both an affirmative defense and a counterclaim in order to reduce or eliminate the plaintiff's recovery on a contract claim, the plaintiff does not need to segregate fees.�…
discussed Cited as authority (rule) Bullet Trap, L.L.C. F/K/A Bullet Trap, Inc. v. Waterproof Positive, LLC D/B/A Energy Roofing Solutions
Tex. App. · 2019 · confidence medium
“By the same token, when a defendant asserts a counterclaim that the plaintiff must overcome in order to fully recover on its contract claim, the attorneys’ fees necessary to defeat that counterclaim are likewise recoverable.” 7979 Airport Garage, L.L.C. v. Dollar Rent A Car Sys., Inc., 245 S.W.3d 488, 507 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (per curiam)); see Hagan v. Pennington, No. 05-18-00010-CV, 2019 WL 2521719 , at *9 (Tex. App.—Dallas June 19, 2019, no pet. h.) (mem. op.) (quoting 7979 Airport Garage). �…
examined Cited as authority (rule) James D. Anderton, Individually as the Trustee of the Jimmie W. Anderton and Frances E. Anderton Revocable Living Trust Agreement v. Jennifer Green (3×) also: Cited "see"
Tex. App. · 2018 · confidence medium
The supreme court has explained, “[i]n Chapa we reestablished the rule that attorney’s fees are recoverable only if necessary to recover on a contract or statutory claim allowing them, and eliminated the exception for fees incurred solely on separate but arguably intertwined claims.” Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (per curiam) (citing Chapa, 212 S.W.3d at 313 ).
cited Cited as authority (rule) Sensible Care Holdings, LLC, Alan Guggenheim, and Susanne Guggenheim v. Burl and Marian Sens
Tex. App. · 2018 · confidence medium
Varner v. Cardenas, 218 S.W. 3d 68, 69 (Tex. 2007).
discussed Cited as authority (rule) In the Interest of C.Y.K.S.
Tex. App. · 2017 · confidence medium
Edwards & Sons, Inc. v. Beyer, 235 S.W.3d 704 , 707 n.1 (Tex. 2007) (requiring that trial courts condition awards of appellate attorney’s fees on an unsuccessful appeal by the party against whom the fees are awarded); Varner v. Cardenas, 218 S.W.3d 68, 69-70 (Tex. 2007) (declining invitation to change Texas law under which trial courts make conditional awards of appellate attorney’s fee in the trial court judgment before the parties incur any appellate fees) (per curiam); Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 62 (Tex. App.-Houston [14th Dist.] 2014, pet. denied) (conclu…
cited Cited as authority (rule) Russell Caldwell D/B/A RW Caldwell Construction v. Jackie Wright
Tex. App. · 2016 · confidence medium
Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007).
discussed Cited as authority (rule) Dennis Draper, Greg Hadley, and Charles Huston v. Austin Manufacturing Services I, Inc.
Tex. App. · 2015 · confidence medium
Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (no segregation required when attorneys’ services necessary both for affirmative claim 42 and defenses); Clearview Props., L.P. v. Property Tex. SC One Corp., 287 S.W.3d 132, 143 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (no segregation required when attorneys’ services necessary whether claim filed by itself or with others); Broesche v. Jacobson, 218 S.W.3d 267, 278 (Tex. App.— Houston [14th] 2007, pet. denied) (“We conclude the interpleader and defense of the counterclaim were inextricably intertwined because to prevail on …
examined Cited as authority (rule) Xiangxiang Tang v. Klaus Wiegand (3×)
Tex. App. · 2015 · confidence medium
Co., 619 S.W.2d 400, 401-02 (Tex. 1981) . . . . . . . . . . . . . . . . . . . 13 Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 4 In re American Homestar of Lancaster, Inc., 50 S.W.3d 480,483 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . 4 iv Cases: Page In re Moers, 104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Moak v. Huff, No. 04-11-00184-CV, 2012 Tex. App. LEXIS 1245 (Tex. App.– San Antonio February 15, 2012) . . . . .…
discussed Cited as authority (rule) Mark P. Hardwick, Individually and D/B/A Mark P. Hardwick Oil and Gas Properties and Mark P. Hardwick, LLC v. Smith Energy Company, on Its Own Behalf and on Behalf of Smith Energy Resource Oil, Ltd., a Texas Limited Partnership, and on Behalf of Smith Energy Partners I, Ltd., a Texas Limited Partnership
Tex. Crim. App. · 2015 · confidence medium
Tony Gullo “reestablished the rule that attorney’s fees are recoverable only if necessary to recover on a contract or statutory claim allowing them.” Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007). 1890.001/55701 50 The only time that segregation is not required is “when discrete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated.” Tony Gullo, 212 S.W.3d at 313-14 (emphasis added).
cited Cited as authority (rule) Kevin Tarr v. Lantana Southwest Homeowners' Association, Inc.
Tex. App. · 2015 · confidence medium
Inc., 245 S.W.3d 488 , 507 (Tex. App. - Houston [1 f th Dist.] 2007, pet. denied) (citing Varner v. Cardenas, 218 S.W.3d 68, 69-70 (Tex. 2007) (per ~uriam).
discussed Cited as authority (rule) In re Mud King Products, Inc.
Bankr. S.D. Tex. · 2015 · confidence medium
Where fees are recoverable, the prevailing party must prove the fees necessary for the litigation of that claim. “[A] prevailing party must segregate recoverable from unrecoverable attorney’s fees in all cases.” Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex.2007).
discussed Cited as authority (rule) Derwin Tatum v. Wells Fargo Home Mortgage, Inc. and Federal Home Loan Mortgage Corporation
Tex. App. · 2014 · confidence medium
The Supreme Court of Texas has held that attorney’s fees are recoverable only as provided by contract or statute, and it “eliminated the exception for fees incurred solely on separate but arguably intertwined claims.” Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (citing Chapa, 212 S.W.3d at 313 ).
cited Cited as authority (rule) Fred Loya Insurance Agency, Inc., and Loya Insurance Company v. Martin W. Cohen, Martin W. Cohen & Co., and Nehoc Advisors, Inc.
Tex. App. · 2014 · confidence medium
Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex.2007).
discussed Cited as authority (rule) Contemporary Contractors, Inc. v. Centerpoint Apt. LTD P/S
Tex. App. · 2014 · confidence medium
A party who prevails on a cause of action for which fees are recoverable must prove the fees that were necessary for the litigation of that claim. “[A] prevailing party must segregate recoverable from unrecoverable attorney’s fees in all cases.” Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (per curiam) (citing Tony Gullo Motors I, LP v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006)).
cited Cited as authority (rule) Anglo-Dutch Petroleum International, Inc. v. Case Funding Network, LP
Tex. App. · 2014 · confidence medium
Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex.2007) (holding that fees incurred in successfully defending against counterclaim in order to collect full amount of note need not be segregated).
discussed Cited as authority (rule) Anglo-Dutch Petroleum International, Inc and Anglo-Dutch (Tenge) LLC v. Case Funding Network, L.P., 3K Partnership, Prosperity Settlement Funding, Inc., Lawsuit Financial, LLC, Future Settlement Funding of SC, Inc., Robert M. Press, New Amsterdam Capital Partners, Inc., Ryan Brooks, Joseph Dinardo, Joseph Giurintano, Plaintif
Tex. App. · 2014 · confidence medium
Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (holding that fees incurred in successfully defending against counterclaim in order to collect full amount of note need not be segregated).
cited Cited as authority (rule) Versata Software, Inc. v. Internet Brands, Inc.
E.D. Tex. · 2012 · confidence medium
Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007).
discussed Cited as authority (rule) David H. Spears, Individually and Spears Furniture of Lubbock, Inc. v. Gena Gail Huber
Tex. App. · 2012 · confidence medium
A prevailing party must segregate recoverable from unrecoverable attorney's fees in all cases, Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007), unless he meets his burden of establishing that discrete legal services were rendered with respect to both a recoverable and unrecoverable claim.
discussed Cited as authority (rule) David H. Spears, Individually and Spears Furniture of Lubbock, Inc. v. Gena Gail Huber
Tex. App. · 2012 · confidence medium
A prevailing party must segregate recoverable from unrecoverable attorney’s fees in all cases, Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007), unless he meets his burden of establishing that discrete legal services were rendered with respect to both a recoverable and unrecoverable claim.
discussed Cited as authority (rule) Cynthia J. Moak v. Cynthia Huff
Tex. App. · 2012 · confidence medium
A party who prevails on a cause of action for which fees are recoverable must prove the fees that were necessary for the litigation of that claim. “[A] prevailing party must segregate recoverable from unrecoverable attorney’s fees in all cases.” Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (citing Tony Gullo Motors I, L.P v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006)).
cited Cited as authority (rule) Campbell Harrison & Dagley L.L.P. v. Lisa Blue/Baron & Blue
N.D. Tex. · 2011 · confidence medium
Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex.2007), cited by Magistrate Judge Toliver (and BAM) is not to the contrary.
discussed Cited as authority (rule) Fourth & Frankford Sonic, LTD., a Texas Corporation v. Chelsea Brown
Tex. App. · 2011 · confidence medium
As for the dispute regarding whether the fees were properly segregated, it is clear that a prevailing party must segregate recoverable from unrecoverable attorney's fees "in all cases." Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007).
discussed Cited as authority (rule) Fourth & Frankford Sonic, LTD., a Texas Corporation v. Chelsea Brown
Tex. App. · 2011 · confidence medium
As for the dispute regarding whether the fees were properly segregated, it is clear that a prevailing party must segregate recoverable from unrecoverable attorney's 13 fees “in all cases.” Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007).
cited Cited as authority (rule) Jon Eric Jacks, Individually and D/B/A Jon Eric Jacks Development v. G. A. Bobo, Jr.
Tex. App. · 2011 · confidence medium
Varner v. Cardenas, 218 S.W.3d 68, 70 (Tex. 2007).
cited Cited as authority (rule) Clouse v. Levin
Tex. App. · 2011 · confidence medium
Additionally, we will not remand this case because “[w]e decline the invitation to allow two trials on attorney’s fees when one will do.” Varner v. Cardenas, 218 S.W.3d 68, 70 (Tex.2007).
cited Cited as authority (rule) Bobby Dean Clouse and Crystal A. Clouse v. Mark Levin
Tex. App. · 2011 · confidence medium
Additionally, we will not remand this case because “[w]e decline the invitation to allow two trials on attorney’s fees when one will do.” Varner v. Cardenas , 218 S.W.3d 68, 70 (Tex. 2007).
discussed Cited as authority (rule) Julia L. Kurtz v. Ronald D. Kurtz (2×) also: Cited "see"
Tex. App. · 2010 · confidence medium
Varner v. Cardenas , 218 S.W.3d 68, 69 (Tex. 2007) (per curiam).
discussed Cited as authority (rule) Todd M. Hertzberg v. the Austin Diagnostic Clinic Association, P.A. D/B/A the Austin Diagnostic Clinic
Tex. App. · 2009 · confidence medium
App. P. 25.1(c) ("A party who seeks to alter the trial court's judgment or other appealable court order must file a notice of appeal."); In re Lesikar , 285 S.W.3d 577, 586 (Tex. App.--Houston [14th Dist.] 2009, no pet.) (appellee waived claim to appellate attorney's fees on remand because she did not request appellate fees, present evidence to support fees, or obtain finding or judgment on issue in trial court) (citing Varner v. Cardenas , 218 S.W.3d 68, 69-70 (Tex. 2007)).
discussed Cited as authority (rule) Todd M. Hertzberg v. the Austin Diagnostic Clinic Association, P.A. D/B/A the Austin Diagnostic Clinic
Tex. App. · 2009 · confidence medium
App. P. 25.1(c) (“A party who seeks to alter the trial court’s judgment or other appealable court order must file a notice of appeal.”); In re Lesikar, 285 S.W.3d 577, 586 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (appellee waived claim to appellate attorney’s fees on remand because she did not request appellate fees, present evidence to support fees, or obtain finding or judgment on issue in trial court) (citing Varner v. Cardenas, 218 S.W.3d 68, 69-70 (Tex. 2007)).
discussed Cited as authority (rule) Intercontinental Group Partnership v. KB Home Lone Star L.P. (2×) also: Cited "see"
Tex. · 2009 · confidence medium
Sys., Inc., 933 S.W.2d 312, 316 (Tex.App.-Houston [14th Dist.] 1996, no pet.). [19] See Cysco Enters., 2002 WL 31833724 , at *6 (holding defendant was prevailing party on main issue even though jury awarded it no damages on its counterclaim). [20] 295 S.W.3d at 652. [21] See 218 S.W.3d 68, 69 (Tex.2007) (per curiam). [22] RESTATEMENT (SECOND) OF CONTRACTS § 344 (1981); see Quigley v. Bennett, 227 S.W.3d 51, 56 (Tex.2007) (Brister, J., concurring in part and dissenting in part); Lon L.
discussed Cited as authority (rule) Gallagher Headquarters Ranch Development, Ltd. v. City of San Antonio (2×) also: Cited "see"
Tex. App. · 2008 · confidence medium
Chapa, 212 S.W.3d at 313-14 ; Varner, 218 S.W.3d at 69 (noting that, “[i]n Chapa , we reestablished the rule that attorney’s fees are recoverable only if necessary to recover on a contract or statutory claim allowing them, and eliminated the exception for fees incurred solely on separate but arguably intertwined claims”) (emphasis added).
discussed Cited as authority (rule) Gallagher Headquarters Ranch Development, Ltd., Christopher Hill and Julie Hooper v. City of San Antonio, Texas (2×) also: Cited "see"
Tex. App. · 2008 · confidence medium
Chapa, 212 S.W.3d at 313-14 ; Varner, 218 S.W.3d at 69 (noting that, “[i]n Chapa, we reestablished the rule that attorney’s fees are recoverable only if necessary to recover on a contract or statutory claim allowing them, and eliminated the exception for fees incurred solely on separate but arguably intertwined claims”) (emphasis added). -20- 04-07-00325-CV Further, the City presented no proof that the legal services rendered applied to all of Hill’s claims, and could not be segregated.
cited Cited as authority (rule) Peter J. Yeh v. David J. MacDougall, D.O., P.A. D/B/A Neurosurgical Association of Houston
Tex. App. · 2008 · confidence medium
Varner v. Cardenas , 218 S.W.3d 68, 69 (Tex. 2007).
discussed Cited as authority (rule) End Users, Inc. v. System Supply for End Users, Inc.
Tex. App. · 2007 · confidence medium
Thus, because SS = s attorney = s fees expended to prove the assignment issue A were necessary to recover on their contract, they are recoverable. @ Varner v. Cardenas , 218 S.W.3d 68, 69 (Tex. 2007).
discussed Cited "see" Joseph Bryant Vick v. LaDonna Denise Vick
Tex. App. · 2024 · signal: see · confidence high
See Varner v. Cardenas, 218 S.W.3d 68 , 69–70 (Tex. 2007) (holding party that failed to prove post-judgment and appellate fees in initial trial could not recover them on remand); Freeman v. Freeman, No. 11 04-15-00453-CV, 2016 WL 2753861 , at *1 (Tex. App.—San Antonio May 11, 2016, no pet.) (mem. op.) (“[T]he party requesting attorney’s fees for an appeal must present evidence regarding a reasonable fee for those services at the original trial.” (quoting Kurtz v. Kurtz, No. 14–08–00351–CV, 2010 WL 1293769 , at *11 (Tex. App—Houston [14th Dist.] Apr. 6, 2010, no pet.) (mem. op…
discussed Cited "see" Jeffrey R. Vaughan v. Raul Medina and Law Offices of Raul Medina, P.C.
Tex. App. · 2024 · signal: see · confidence high
See Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (holding that fees incurred in successfully defending against counterclaim in order to collect full amount of note need not be segregated); [Tony Gullo Motors I], 212 S.W.3d at 313 ; Anglo-Dutch 11 Petroleum Int[’l], Inc. v. Case Funding Network, LP, 441 S.W.3d 612, 634 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (holding that “to prove their entitlement to recover for Anglo-Dutch’s breach of the investment agreements, the release investors had to overcome Anglo–Dutch’s counterclaims.
cited Cited "see" Brandon Hjella v. Red McCombs Motors, Ltd.
Tex. App. · 2024 · signal: see · confidence high
See Jacks, 2011 WL 2638751 , at *6; see generally Varner v. Cardenas, 218 S.W.3d 68, 70 (Tex. 2007).
cited Cited "see" Willis Alan Hizar and Roofmasters DFW, LLC v. Kenneth Heflin and Anna Heflin
Tex. App. · 2023 · signal: see · confidence high
See Varner v. Cardenas, 218 S.W.3d 68 , 69–70 (Tex. 2007) (per curiam); Chapa, 212 S.W.3d at 314 .
cited Cited "see" Sanjay Joshi v. Southlake Automotive, LLC
Tex. App. · 2020 · signal: see · confidence high
See Varner v. Cardenas, 218 S.W.3d 68, 69-70 (Tex. 2007).
discussed Cited "see" Jeffrey R. Vaughan v. Raul Medina and Law Office of Raul Medina, P. C.
Tex. App. · 2020 · signal: see · confidence high
See Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (holding that fees incurred in successfully defending against counterclaim in order to collect full amount 20 of note need not be segregated); Chapa, 212 S.W.3d at 313 ; Anglo-Dutch Petroleum Intern., Inc. v. Case Funding Network, LP, 441 S.W.3d 612, 634 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (holding that “to prove their entitlement to recover for Anglo– Dutch’s breach of the investment agreements, the release investors had to overcome Anglo–Dutch’s counterclaims.
examined Cited "see" University General Hospital, L.P., University Hospital Systems, LLP, Charo Barnette, in Her Capacity as Independent of the Estate of Guy Barnette, and John E. Udeh v. Siemens Medical Solutions USA, Inc. (4×)
Tex. App. · 2017 · signal: see · confidence high
See Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (per curiam).
cited Cited "see" Hejin Hong v. Nations Renovations, LLC
Tex. App. · 2016 · signal: see · confidence high
See Varner v. Cardenas, 218 S.W.3d 68 , 69–70 (Tex. 2007) (per curiam); Chapa, 212 S.W.3d at 314 .
examined Cited "see" Joel Flores, Individually and in a Representative Capacity and Criselda Flores, Individually and in a Representative Capacity v. Gonzalez & Associates Law Firm, Ltd. (3×)
Tex. App. · 2016 · signal: see · confidence high
See Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (per curiam). 20 2.
cited Cited "see" Permian Power Tong, Inc. v. Diamondback E&P, LLC
Tex. App. · 2016 · signal: see · confidence high
See Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007).12 Diamondback failed to provide legally or factually sufficient evidence of conditional appellate attorney’s fees.
Retrieving the full opinion text from the archive…
Jack N. VARNER and Joyce L. Varner, Petitioners,
v.
Jose L. CARDENAS and Gloria Cardenas, Respondents
06-0212.
Texas Supreme Court.
Mar 2, 2007.
218 S.W.3d 68
2007 Tex. LEXIS 189
2007 WL 624074
Roger Lee, Gibson & Hotchkiss, Roach & Davenport, Wichita Falls, TX, Lloyd Benson, Benson & Benson, Inc., Frederick, OK, for Petitioner., Daniel L. Schaap, Robert Wade King, Underwood, Wilson, Berry, Stein & Johnson, Amarillo, Mike Baskerville, Pruitt Friberg Baskerville & Heatly, Vernon, TX, for Respondent., Randall K. Price, Cantey & Hanger, L.L.P., Dallas, Douglas C. Jeffrey III, Vernon, TX, for Other.
Per Curiam.
Cited by 107 opinions  |  Published
PER CURIAM.

We recently held in Tony Gullo Motors I, L.P. v. Chapa that a prevailing party must segregate recoverable from unrecoverable attorney’s fees in all cases. 212 S.W.3d 299, 313 (Tex.2006). The court of appeals here correctly reversed and remanded for segregation; but as it defined recoverable fees too narrowly, we modify its judgment.

The Varners sold a ranch to the Carde-nases in December 1997 in return for cash and a promissory note. The note provided for ten annual installments due each December. The Cardenases paid the first installment in December 1998, but no others. In response to the Varners’ suit on the note, they alleged the ranch was 180 acres less than represented. Both parties added claims against the title insurer and its agents, which the trial court severed out.

After a bench trial, the trial court granted judgment for the Varners, but reduced the balance on the note to reflect a shortfall in acreage. The court of appeals reversed, granting the Varners the full balance because the Cardenases never pleaded mistake or requested reformation of the deed. See 182 S.W.3d 380, 382-83. Neither party appeals that ruling.

The trial court also awarded the Varners $40,500 in attorney’s fees for trial. The court of appeals reversed because the Var-ners had failed to segregate fees incurred in their suit on the note from fees incurred (1) pursuing claims against the title insurer, or (2) defending against the Cardenas-es’ counterclaim. Id. at 383-84.

In Chapa, we reestablished the rule that attorney’s fees are recoverable only if necessary to recover on a contract or statutory claim allowing them, and eliminated the exception for fees incurred solely on separate but arguably intertwined claims. 212 S.W.3d at 313. In this case, we agree with the court of appeals that fees incurred pursuing the title insurer cannot be collected from the Cardenases— suing third parties was not necessary for the Varners to collect on their note.

But we disagree that fees defending against the Cardenases’ counterclaim must be segregated too. By asserting a shortfall in acreage as a defense and counterclaim, the Cardenases sought to reduce the amount collected on the note; to collect the full amount, the Varners had to overcome this defense. As their attorney’s efforts to that effect were necessary to recover on their contract, they are recoverable. See id. at 311; TEX. CIV. PRAC. & REM. CODE § 38.001(8).

The Varners raise two additional issues. First, the trial court denied any attorney’s fees for post-judgment foreclosure or appeal, and the court of appeals affirmed because no evidence was offered regarding a reasonable fee for those services. See 182 S.W.3d at 383. The Var-ners cite no such evidence, but ask us to[*70] change Texas procedure to allow post-judgment fees to be determined after appeal by remand to the trial court. We decline the invitation to allow two trials on attorney’s fees when one will do. See Int’l Sec. Life Ins. Co. v. Spray, 468 S.W.2d 347, 349 (Tex.1971) (requiring proof of appellate fees in initial trial).

Second, the court of appeals reversed the trial court’s assessment of prejudgment interest on the entire note balance beginning December 15, 1998. See 182 S.W.3d at 384-85. As the note did not waive notices regarding acceleration, interest ran on unpaid installments only until acceleration occurred. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex.2001). The Varners concede the judgment was erroneous because the Cardenases did not default in 1998, but argue we should change “1998” to “1999” as a clerical error. While they make a persuasive case that acceleration itself was uncontested, they point to no pleading, evidence, or stipulation as to when acceleration occurred. Thus, we cannot determine as a matter of law when interest began to run on the entire note rather than just unpaid installments.

Accordingly, without hearing oral argument, we modify the court of appeals’ judgment to the extent it required segregation of fees the Varners incurred defending against the Cardenases’ counterclaim, and as modified affirm. See TEX. R. APP. P. 59.1.