Frankenmuth Mutual Insurance Company v. Bullnose Masonry LLC

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
FRANKENMUTH MUTUAL 	§
INSURANCE COMPANY, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:24-cv-2516-X
§
BULLNOSE MASONRY, LLC, 	§
§
Defendant. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Plaintiff Frankenmuth Mutual Insurance Company sued Defendant Bullnose
Masonry, LLC for breach of contract under Texas law, and the Court granted
Frankenmuth’s motion for default judgment against Bullnose and entered judgment
in favor of Frankenmuth. See Dkt. No. 10.
The Court then denied Frankenmuth’s initial motion for attorneys’ fees
“without prejudice to allow Frankenmuth to file better evidence.” Dkt. No. 15.
Frankenmuth renewed its motion. See Dkt. Nos. 16 & 17.
United States District Judge Brantley Starr referred the renewed motion to
the undersigned United States magistrate judge. See Dkt. No. 18; 28 U.S.C. § 636(b);
FED . R. C IV. P 72(b); FED . R. C IV. P. 54(d)(2)(D) (“[T]he court may refer … a motion for
attorney’s fees to a magistrate judge under Rule 72(b) as if it were a dispositive
pretrial matter.”).
And, for the following reasons, the undersigned recommends that the Court
deny the renewed motion.
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Legal Standards
Texas law applies to a request for fees as a prevailing party on a claim made
under Texas law. See Ingalls Shipbuilding v. Fed. Ins. Co., 410 F.3d 214, 230 (5th
Cir. 2005) (“The award of attorneys’ fees is governed by the law of the state whose
substantive law is applied to the underlying claims.” (footnote omitted)); accord
Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002) (“State law controls both the
award of and the reasonableness of fees awarded where state law supplies the rule of
decision.”).
“Texas law permits an award for attorney’s fees only if authorized by statute
or contract.” Bennigan’s Franchising Co., LLC v. Team Irish, No. 3:11-cv-364-D, 2011
WL 3903068, at *2 (N.D. Tex. Sept. 6, 2011) (citing Int’l Grp. P’ship v. KB Home Lone
Star L.P., 295 S.W.3d 650, 653 (Tex. 2009); Tony Gullo Motors I, L.P. v. Chapa, 212
S.W.3d 299, 310-11 (Tex. 2006)).
And, “[w]hen a prevailing party in a breach of contract suit seeks attorney’s
fees, an award of reasonable fees is mandatory under § 38.001 [of the Texas Civil
Practice and Remedies Code] if there is proof that the fees are reasonable.” Id. at *3
(citations omitted).
“In addition to the statutory right to recover attorney’s fees under the
provisions of § 38.001, ‘[p]arties are free to contract for a fee-recovery standard either
looser or stricter than Chapter 38.’” Id. (quoting KB Home, 295 S.W.3d at 653; citation
omitted). In that case, “the terms of the contract, not statute, control the outcome of
the case.” Id. (cleaned up).
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And, under Texas law, a prevailing party authorized “to obtain attorney’s fees
from the opposing party” still “must prove that the requested fees are both reasonable
and necessary.” Aircraft Holding Sols., LLC v. Learjet, Inc., No. 3:18-cv-823-D, 2023
WL 5311486, at *3 (N.D. Tex. Aug. 17, 2023) (quoting Rohrmoos Venture v. UTSW
DVA Healthcare, LLP, 578 S.W.3d 469, 489 (Tex. 2019) (citing In re Nat’l Lloyds Ins.
Co., 532 S.W.3d 794, 809 (Tex. 2017))).
The preferred method of federal courts calculating reasonable
attorneys’ fees under Texas law is the lodestar method. See Fairmont
Specialty Ins. Co. v. Apodaca, 234 F. Supp. 3d 843, 852 (S.D. Tex. 2017)
(citing Rappaport v. State Farm Lloyds, 275 F.3d 1079 (5th Cir. 2001)
(per curiam)). The lodestar method is a two-step process. Combs v. City
of Huntington, 829 F.3d 388, 391 (5th Cir. 2016). First, courts calculate
the lodestar by multiplying the “number of hours reasonably expended
... by the prevailing hourly rate in the community for similar work.” Id.
at 392 (internal quotation marks omitted).
Wease v. Ocwen Loan Servicing, No. 3:13-cv-4107-B, 2021 WL 4991079, at *2 (N.D.
Tex. Oct. 27, 2021).
There is a strong presumption of the reasonableness of the lodestar amount.
See Perdue v. Kenny A., 559 U.S. 542, 552 (2010); Saizan v. Delta Concrete Prods.,
Inc., 448 F.3d 795, 800 (5th Cir. 2006).
And, “[i]f a party does not object to particular billing entries as inadequately
documented, the court is not obligated sua sponte to sift through fee records searching
for vague entries or block billing,” so “[i]t is a common practice for courts to address
only those potentially inadequate entries brought to the court’s attention.” Hoffman
v. L & M Arts, No. 3:10-cv-953-D, 2015 WL 3999171, at *5 (N.D. Tex. July 1, 2015).
And the Court should not “eliminate wholesale the services of attorneys
without identifying the particular services which are regarded as duplicative.” Tasby
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v. Estes, 651 F.2d 287, 289-90 (5th Cir. Unit A July 1981) (cleaned up).
Instead, 	“[p]ercentage 	reductions 	are 	appropriate 	when 	attorneys
impermissibly engage in block billing or fail to exercise billing judgment” – including
by failing to write off time spent on work that was redundant and in hindsight may
have been unnecessary – or “when a court reduces excessive time spent on particular
legal services” or for particular services that are “duplicative.” Fralick v. Plumbers &
Pipefitters Nat’l Pension Fund, No. 3:09-cv-752-D, 2011 WL 487754, at *13 (N.D. Tex.
Feb. 11, 2011); Shepherd v. Dallas Cnty., Tex., No. 3:05-cv-1442-D, 2009 WL 977294,
at *2 n.3 (N.D. Tex. Apr. 10, 2009); accord Saizan, 448 F.3d at 799 (“The proper
remedy for omitting evidence of billing judgment does not include a denial of fees but,
rather, a reduction of the award by a percentage intended to substitute for the
exercise of billing judgment.” (cleaned up)); Cookston v. Freeman, Inc., No. 3:98-cv-
2106-D, 1999 WL 714760, at *5 (N.D. Tex. Sept. 14, 1999).
After calculating the lodestar, “Texas courts then apply the eight Arthur
Andersen factors to determine whether the lodestar should be adjusted.” Wease, 2021
WL 4991079, at *2 (citing Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d
812, 818 (Tex. 1997); footnote omitted).
These factors are:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill required to perform the legal service
properly;
(2) the likelihood ... that the acceptance of the particular employment
will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
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(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been rendered.
Id. at *2 n.7 (formatting modified; quoting Arthur Andersen, 945 S.W.2d at 818).
“[T]he base lodestar figure accounts for most of the relevant Arthur Andersen
considerations.” Rohrmoos, 578 S.W.3d at 500.
“The relevant factors are similar to those articulated in Johnson[ v. Georgia
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), overruled on other
grounds by Blanchard v. Bergeron, 489 U.S. 87, 90 (1989).]” El Campo Ventures LLC
v. Stratton Secs. Inc., No. 1:20-CV-00560-RP, 2022 WL 1518926, at *4 (W.D. Tex. Feb.
1, 2022) (footnote omitted), rec. adopted, 2022 WL 17735386 (W.D. Tex. Aug. 23,
2022).
And, in the end, the Court need only “provide a reasonably specific explanation
for all aspects of a fee determination.” Portillo v. Cunningham, 872 F.3d 728, 741 (5th
Cir. 2017) (cleaned up).
So “rulings on fee awards need not ‘be so excruciatingly explicit’ that those
decisions ‘consume more paper than did the cases from which they arose.’” Saldivar
v. Austin Indep. Sch. Dist., 675 F. App’x 429, 432-33 (5th Cir. 2017) (per curiam)
(quoting In re High Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d 220, 228-29
(5th Cir. 2008)).
Instead, this Court’s “analysis [must be] ‘complete enough’ for [the United
States Court of Appeals for the Fifth Circuit] to review ‘whether the [C]ourt has used
proper factual criteria in exercising its discretion to fix just compensation.’” Id.
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(quoting Brantley v. Surles, 804 F.2d 321, 325-26 (5th Cir. 1986)).
Analysis
I. 	The Court should deny Frankenmuth’s request for attorneys’ fees.
The undersigned has carefully reviewed the renewed motion for attorneys’ fees
[Dkt. Nos. 16 & 17] and its attached evidence – (1) a declaration from Frankenmuth’s
counsel of record, Emory G. Allen, a member of the law firm Clark Hill PLC, who has
practiced law for more than a decade [Dkt. No. 17-1], and (2) the applicable billing
records [Dkt. No. 17-2].
First, the hourly rates for the professionals who worked on this case (three
attorneys and a paralegal) are reasonable and within the market rate for attorneys
and legal assistants handling this type of litigation in the Dallas Division of the
Northern District of Texas. See Dkt. No. 17-1, ¶¶ 8-11; Wachovia Bank, Nat’l Ass’n v.
Schlegel, No. 3:09-cv-1322-D, 2010 WL 4275277, at *2 & n.4 (N.D. Tex. Oct. 29, 2010)
(“[T]he court … [is] an expert as to the reasonableness of attorney’s fees.” (applying
Texas law; citing Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th
Cir. 	2004) 	(“[T]rial 	courts 	are 	considered 	experts 	as 	to 	the 	reasonableness 	of
attorney’s fees.” (applying federal law)))).
So the Court can determine one component of the lodestar: “the prevailing
hourly rate in the community for similar work.” Combs, 829 F.3d at 392
But the heavily redacted billing entries [Dkt. No. 17-2] prevent the Court from
determining the “number of hours reasonably expended” component, Combs, 829 F.3d
at 392. Consider a few examples:
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Entries like these and – just as another example – Mr. Allen’s one-hour entry
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on October 16, 2024 that simply tells the Court: “Call with [redacted],” Dkt. No. 17-2
at 63, prevent a meaningful examination as to the substance of a particular time
entry to allow the Court to determine whether a particular entry by an attorney was
for legal work (as opposed to clerical work) or whether the attorneys have exercised
judgment by refraining from excessive or redundant billing. See Tovar v. Sw. Bell
Tel., L.P., No. 3:20-cv-1455-B, 2022 WL 2306926, at *5 (N.D. Tex. June 27, 2022 (“The
court should consider whether the work performed was legal work in the strict sense
or was merely clerical work that happened to be performed by a lawyer.” (cleaned up;
quoting Abrams v. Baylor Coll. of Med., 805 F.2d 528, 536 (5th Cir. 1986))); E.E.O.C.
v. SkyWest Airlines, Inc., No. 3:22-cv-1807-D, 2025 WL 697661, at *6 (N.D. Tex. Mar.
4, 2025) (“Billing judgment ‘refers to the usual practice of law firms in writing off
unproductive, excessive, or redundant hours. Plaintiffs submitting fee requests ....
are charged with proving that they exercised billing judgment.’” (quoting Walker v.
U.S. Dep’t of Hous. & Urb. Dev., 99 F.3d 761, 769-70 (5th Cir. 1996))).
And it’s not just one entry – or even a few. If that was the case, the Court could
deduct the amount billed for a deficient entry from the lodestar. Instead, because the
bulk of the time entries prevent a meaningful review of what legal work was
performed, the undersigned cannot determine the hours component of the lodestar.
In sum, the evidence resubmitted by Frankenmuth prevents the Court from
calculating a key component of the lodestar, and, so, the Court is not able “to provide
a reasonably specific explanation for all aspects of a fee determination,” Portillo, 872
F.3d at 741, and deliver an “analysis [that] is ‘complete enough’ for [the Fifth Circuit]
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to review,” Saldivar, 675 F. App’x at 432.
II. 	The Court should also deny any request for costs included in
Frankenmuth’s motion for attorneys’ fees.
To the extent that the renewed motion also requests costs under Federal Rule
of Civil Procedure 54(d) – $592 – the renewed motion fails to specify what these costs
are, but Frankenmuth previously submitted a bill of costs for the same total amount
(requesting $405 for the filing fee and $187 for service of summons and subpoena),
see Dkt. No. 13.
28 U.S.C. “§ 1920 defines the term ‘costs’ as used in Rule 54(d).” Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987).
And the United States “Supreme Court has indicated that federal courts may
only award those costs articulated in section 1920 absent explicit statutory or
contractual authorization to the contrary.” Cook Children’s Med. Ctr. v. The N. Engl.
PPO Plan of Gen. Consolidation Mgmt. Inc., 491 F.3d 266, 274 (5th Cir. 2007) (cleaned
up).
“Section 1920(1) allows recovery of ‘fees of the clerk and marshal,’ but does not
expressly allow recovery of private process server fees,” and, so, ‘absent exceptional
circumstances, the costs of a private process server are not recoverable under Section
1920.’” Est. of Bellamy ex rel. Bellamy v. Ford Motor Co., No. SA-22-CV-00941-JKP,
2025 WL 3771434, at *2 (W.D. Tex. Aug. 18, 2025) (quoting Marmillion v. Am. Int’l
Ins. Co., 381 F. App’x 421, 431 (5th Cir. 2010) (per curiam) (citing Cypress-Fairbanks
Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 257 (5th Cir. 1997))).
So, based on the record in this case, Frankenmuth has demonstrated only that
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it 	should 	recover 	$405, 	as 	it 	has 	“not provide[d] 	any 	evidence 	of 	exceptional
circumstances to justify recovery of the cost of private process servers.” Id. (citations
omitted); see Dkt. No. 5 (executed summons return).
Regardless, the Clerk of Court has already taxed these costs. See Dkt. No. 14.
And Frankenmuth is not entitled to double recovery of any component of the
costs previously taxed against Bullnose. Cf. James v. Wells Fargo Bank, N.A., No.
5:12-cv-42-C, 2012 WL 13028546, at *4 (N.D. Tex. Sept. 5, 2012) (“Defendant also
seeks an award of costs. The Court already taxed costs of court against Plaintiffs in
its final judgment and declines to make a determination of such costs via the instant
motion. Rather, Defendant must comply with the requirements of Rule 54(d)(1) and
Local Rule 54.1, including filing a bill of costs with the clerk.”).
Recommendation
The Court should deny Plaintiff Frankenmuth Mutual Insurance Company’s
Motion for Attorneys’ Fees [Dkt. No. 16].
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections
within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED . R. CIV.
P. 72(b). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
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reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: February 13, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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