Anglo - Dutch Petroleum International, Inc. and Anglo - Dutch (Tenge) LLC v. Littlemill Limited--Appeal from 152nd District Court of Harris County

Affirmed in Part and Reversed and Remanded in Part and Memorandum Majority and Concurring Opinions filed October 2, 2007

Affirmed in Part and Reversed and Remanded in Part and Memorandum Majority and Concurring Opinions filed October 2, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00921-CV

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ANGLO-DUTCH PETROLEUM INTERNATIONAL, INC. AND

ANGLO-DUTCH (TENGE) LLC, Appellants

V.

LITTLEMILL LIMITED, Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2004-60996

M E M O R A N D U M C O N C U R R I N G O P I N I O N

I agree with the reasoning used by the majority in all respects except for its discussion of the affidavit of Fred Hagans regarding attorney=s fees. Rather than hold that the affidavit of Mr. Hagans was internally inconsistent, I would hold that it failed to prove that the tort and contract claims were inextricably intertwined so that all legal fees were recoverable. Mr. Hagans said the following to prove that the claims were inextricably intertwined:

This case involves claims of breach of contract, claims for declaratory relief and other claims arising out of the same transaction at issue in connection with Littlemill=s breach of contract claims such that the prosecution of all of these claims entails proof or denial of essentially the same facts. All of Littlemill=s claims are, in my opinion, intertwined to the point of being inseparable and therefore are Ainextricably intertwined.@

In Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006), the Texas Supreme Court rejected the idea that a litigant could prove that claims were inextricably intertwined merely by stating that the claims were dependent on the same set of facts. There, the Court acknowledged that Chapa=s fraud, contract and DTPA claims were all dependent upon the same set of facts or circumstances, yet went on to state, Athat does not mean they all required the same research, discovery, proof, or legal expertise.@ Id. at 313. The Court continued with the following:

Nor are unrecoverable legal fees rendered recoverable merely because they are nominal; there is no such exception in any contract, statute, or Athe American Rule.@ To the extent Sterling suggested that a common set of underlying facts necessarily made all claims arising therefrom Ainseparable@ and all legal fees recoverable, it went too far.

Id. (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991)). The Court acknowledged that many actions taken in a case, such as Arequests for standard disclosures, proof of background facts, depositions of the primary actors, discovery motions and hearings, voir dire of the jury, and a host of other services may be necessary whether a claim is filed alone or with others,@ and held that to the extent these services would have been incurred on a recoverable claim alone, Athey are not disallowed simply because they do double service.@ Id. But, the Court reaffirmed that when certain services are performed only for an unrecoverable claim, and are not doing Adouble service,@ a claimant must segregate recoverable from unrecoverable fees. Id. In addition, to recover fees for causes of action that are inextricably intertwined but involve both recoverable and unrecoverable claims, lawyers must now identify the discrete legal services that perform the dual service of advancing both the recoverable and unrecoverable claims. Id. at 313B14. A lawyer need not keep separate time records for every service claimed to advance both a recoverable and an unrecoverable claim; he may opine what percentage of the service would have been required even if the unrecoverable claim had not been brought. See id. at 314.

Here, Mr. Hagans did not take the extra steps to identify the discrete legal services that advanced both recoverable and non-recoverable claims. As a result, the case should be remanded to allow Mr. Hagans to prove his fees. Id.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Majority and Concurring Opinions filed October 2, 2007.

Panel consists of Justices Anderson, Hudson, and Fowler.(Anderson, J. Majority)