Pearcy et al v. Hughes et al

Filing 212

REPORT AND RECOMMENDATIONS re 174 Motion for Attorney Fees filed by James Pearcy, Johnny Thomas, Carolyn Pearcy. Signed by Judge Elizabeth S. Chestney. (cd)

Case 5:16-cv-00951-DAE Document 212 Filed 06/23/20 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JOHNNY THOMAS, A BANKRUPTCY
TRUSTEE OF PERFORMANCE
PRODUCTS, INC.; JAMES PEARCY,
CAROLYN PEARCY, IN HER
CAPACITY AS TRUSTEE OF THE
PEARCY FAMILY TRUST, TRUSTEE
OF THE PEARCY MARITAL TRUST,
AND EXECUTOR OF THE ESTATE OF
JAMES PEARCY;
Plaintiffs,
vs.
LOU ANN HUGHES, ADVANCED
PROBIOTICS, LLC, PERFORMANCE
PROBIOTICS, LLC,
Defendants.

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SA-16-CV-00951-DAE

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge David A. Ezra:
This Report and Recommendation concerns Plaintiffs’ Motion for Award of Attorney’s
Fees [#174]. The motion was referred to the undersigned for a report and recommendation
pursuant to Western District of Texas Local Rule CV-72 and Appendix C. The undersigned has
authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set
forth below, it is recommended that Plaintiffs’ motion be granted in part.
I. Background
This case arises out of a business dispute regarding Performance Products, Inc. (“PPI”), a
company that developed and sold probiotic feed supplements for cattle and other livestock.
(Third Am. Compl. [#35-1] at ¶ 9.) Plaintiff James Pearcy, founder of PPI, along with Johnny
Thomas, Bankruptcy Trustee of PPI, originally filed this suit against Defendants Lou Ann
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Hughes, Pearcy’s former attorney, and two entities she created—Advanced Probiotics
International, LLC (“API”) and Performance Probiotics, LLC (“Performance Probiotics”).
During the pendency of this case, Pearcy died and his wife Carolyn Pearcy, in her capacities as
Trustee of the Pearcy Marital Trust and Executor of her husband’s estate, was substituted as a
party plaintiff [#65, #69].
Plaintiffs’ Third Amended Complaint alleges that Pearcy developed proprietary
formulations for PPI’s probiotic feed supplements and ultimately sold his company to Defendant
Hughes. (Third Am. Compl. [#35-1] at ¶ 9.) Hughes structured the transaction such that she
paid a small portion of the purchase price in exchange for PPI stock, with the remainder of the
price to be paid by PPI under a licensing agreement whereby PPI could continue to use the
proprietary formulations in exchange for PPI paying Pearcy royalties. (Id.)
Plaintiffs contend that Hughes failed to pay the royalties owed, which resulted in a state
court lawsuit brought by Pearcy against PPI for breach of contract and misappropriation of trade
secrets and against Hughes for breach of fiduciary duties. (Id. at ¶ 10.) After a ten-day trial, the
state-court jury returned a verdict for Pearcy finding that PPI did not comply with the licensing
agreement; PPI misappropriated Pearcy’s trade secrets; and Hughes breached her fiduciary duty
to Pearcy as his attorney.

(Id.)

However, the state court granted PPI’s motion to set a

supersedeas bond at $129,816.54, which prevented Pearcy from collecting on the judgment or
conducting post-judgment recovery during PPI’s and Hughes’s appeals. (Id. at ¶ 11.) The Third
Court of Appeals affirmed the judgment; the Texas Supreme Court denied a petition of review;
Pearcy received the supersedeas bond; but PPI did not pay the remainder. (Id. at ¶ 13.) Hughes
subsequently filed for bankruptcy protection for PPI, and Plaintiffs filed this action to recover the
$1,265,250.23 remaining on the judgment.

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By this action, Plaintiffs allege that Hughes and her entities APL and Performance
Probiotics continued to use Pearcy’s misappropriated trade secrets and have improperly insulated
themselves from compensating Pearcy for same and fulfilling the state court judgment. (Id. at ¶¶
12, 14.)

The following claims survived Defendants’ motion for summary judgment:

(1)

Plaintiffs’ state law fraudulent transfer claims under the Texas Uniform Fraudulent Transfer Act
(“TUFTA”); (2) Plaintiffs’ piercing the corporate veil and disregard of the corporate entity
claim; (3) the Executor’s misappropriation of trade secrets claim; (4) the Trustee’s federal
fraudulent transfer claims under 11 U.S.C. §§ 542, 544, and 548; and (5) the Trustee’s Lanham
Act claims for trademark infringement. (Summ. J. Order [#108] at 53.)
From October 28, 2019 to November 5, 2019, the District Court held a jury trial on these
claims. At the close of trial, the jury returned a verdict for Plaintiffs, finding the following: (1)
Hughes fraudulently transferred assets of PPI with the intent to hinder, delay, or defraud Pearcy
and the assets were not of inconsequential value; (2) Hughes used PPI and Performance
Probiotics for the purpose of perpetrating an actual fraud on Pearcy for her own personal benefit;
(3) Hughes and Performance Probiotics misappropriated Pearcy’s trade secrets, resulting in
damages of $1,419,724.37 and assessing $1.2 million in punitive damages against Hughes; and
(4) Hughes breached her fiduciary duty to PPI, resulting in $859,490 in compensation that should
be disgorged and returned to the Trustee.
Plaintiffs subsequently filed the motion for attorney’s fees that is the subject of this report
and recommendation and moved for entry of final judgment based on the verdict. The District
Court referred both motions to the undersigned for a report and recommendation. The
undersigned issued a report and recommendation on the motion for judgment, and the District

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Court entered a final judgment consistent with the undersigned’s recommendations on March 4,
2020 [#189].
The final judgment ordered, adjudged, and decreed that Plaintiff Carolyn Pearcy, in her
capacities as Trustee of the Pearcy Marital Trust and Executor of the Estate of James Pearcy,
recover on her claim for misappropriation of trade secrets from PPI and Hughes, jointly and
severally, the amount of $1,419,724.37, plus $188.89 in interest, accruing each day between the
date of verdict and the date of judgment, for a total amount of $1,442,580.06. The District Court
also awarded Pearcy exemplary damages from Hughes on her misappropriation of trade secrets
claim in the amount of $1,200,000.00. As to the claim of breach of fiduciary duty, the District
Court ordered Thomas, as Bankruptcy Trustee of PPI, to recover from Hughes the amount of
$859,490.00. The District Court specifically found that the acts of Hughes constituted various
fraudulent acts taken for her own direct and personal benefit and that the corporate veil between
PPI, Hughes, and Performance Probiotics should be disregarded. The District Court also ordered
that Plaintiffs shall recover from PPI and Hughes, jointly and severally, reasonable and necessary
attorney’s fees, expenses, and court costs to be determined by the Court. No relief was awarded
against API. Finally, the District Court entered a permanent injunction prohibiting Hughes and
PPI, or anyone acting in concert with them, from manufacturing or selling any products utilizing,
incorporating, or derived from the formula listings set forth in Plaintiffs’ Exhibit 33, to remain in
effect so long as the damages, interest, and any fee award by the Court remain unsatisfied.
After the Court issued its final judgment, Plaintiffs filed an amended application for postjudgment turnover and appointment of a receiver, which the District Court also referred for a
report and recommendation. In addition, Defendants filed a renewed motion for judgment as a
matter of law and motion for new trial, which has not been referred to the undersigned.

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Thereafter, the parties filed an agreed motion for turnover relief, and the District Court entered
the agreed order of turnover on May 5, 2020. Although the motion for judgment and new trial
remains pending before the District Court, the undersigned will nonetheless make
recommendations on the referred motions for fees for the District Court’s consideration and will,
by separate order, schedule a status conference to address the motion to appoint a receiver and
how it is affected by the entry of the turnover order.
II. Analysis
The Court should grant Plaintiffs’ motion for attorney’s fees in part. The Court has
discretion to award Plaintiffs their reasonable fees as the prevailing parties in this suit, and the
requested award of fees incurred through the award of final judgment in this case, as modified in
Plaintiffs’ Reply [#182], is reasonable. However, Plaintiffs’ request for fees associated with any
post-judgment motions or a future appeal before the Fifth Circuit should be denied. Nothing in
this report and recommendation prevents Plaintiffs from filing a supplemental motion for fees
associated with these additional litigation expenses at a later date.
A.

The Court should award Plaintiffs their reasonable fees incurred through the award
of final judgment.
Plaintiffs bring their motion for fees pursuant to Texas Business and Commerce Code §

24.013 and Texas Civil Practice and Remedies Code § 31.002(e). In their response to Plaintiffs’
motion, Defendants concede that Plaintiffs may recover their reasonable attorneys’ fees but
object to the amount of fees requested. The undersigned agrees that Plaintiffs may recover
reasonable attorney’s fees under both of the Texas statutory provisions cited in their motion.
Section 24.013 of the Texas Business and Commerce Code provides that in any
fraudulent transfer proceeding under TUFTA, “the court may award costs and reasonable
attorney’s fees as are equitable and just.” Plaintiffs prevailed on their claims arising under
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TUFTA at trial, and the jury found that Hughes made a fraudulent transfer of PPI’s assets with
the actual intent to defraud for her personal benefit sufficient to pierce the corporate veil under
TUFTA. See Tex. Bus. & Comm. Code § 24.005. The District Court’s final judgment reflects
these findings. The District Court has broad discretion to award Plaintiffs their reasonable fees
under Section 24.013 of the Texas Business and Commerce Code. See In re Pace, 456 B.R. 253,
283 (Bankr. W.D. Tex. 2011) (citing cases awarding fees under TUFTA where the evidence
demonstrated egregious conduct on behalf of the defendants, as well as where there was no such
evidence).
Section 31.002(e) of the Texas Civil Practice and Remedies Code

provides that a

judgment creditor “is entitled to recover reasonable costs, including attorney’s fees,” incurred for
the collection of a judgment through a court proceeding. Texas authorizes the collection of a
judgment through a court proceeding when certain requirements are met. Tex. Civ. Prac. &
Rem. Code § 31.002. “A judgment creditor is entitled to aid from a court . . . if the judgment
debtor owns property, including present or future rights to property, that: (1) cannot readily be
attached or levied on by ordinary legal process; and (2) is not exempt from attachment,
execution, or seizure for the satisfaction of liabilities.”

Id. at § 31.002(a).

When these

requirements are met, the court is authorized to (1) order the turnover of the property to a sheriff
or constable, (2) apply the property to the satisfaction of the judgment or (3) appoint a receiver to
take possession of the property, sell it, and pay the proceeds to satisfy the judgment. Id. at §
31.002(b). The statute permits a court to “reach the assets owned and subject to control of a
judgment debtor, even if those assets are in hands of a third party.” Resolution Trust Corp. v.
Smith, 53 F.3d 72, 78 (5th Cir. 1995). If successful, the judgment creditor who seeks judgment
collection pursuant to this statute is entitled to reasonable fees and costs incurred in obtaining the

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turnover relief. Tex. Civ. Prac. & Rem. Code § 31.002(e). Again, the record reflects that the
District Court entered an Agreed Order of Turnover on May 5, 2020 [#199], in which the Court
ordered Hughes, Performance Probiotics, and API to turnover and transfer 100% of the assets of
Performance Probiotics and API to Thomas. Plaintiffs are therefore also entitled to recover
reasonable fees under Section 31.002(e) of the Texas Civil Practices and Remedies Code.
B.

Plaintiffs’ requested fees, as modified by their reply, are reasonable.
Plaintiffs’ fee request, as modified by their reply, is reasonable. Texas courts, like the

Fifth Circuit, generally use the lodestar method for calculating reasonable attorney’s fees.
Robinson v. State Farm Fire & Cas. Co., 13 F.3d 160, 164 (5th Cir. 1994); Toshiba Mach. Co.,
Am. v. SPM Flow Control, Inc., 180 S.W.3d 761, 782–83 (Tex. App.—Fort Worth 2005, pet.
granted, judgm’t vacated w.r.m.); Guity v. C.C.I. Enters., Co., 54 S.W.3d 526, 528 (Tex. App.—
Houston [1st Dist.] 2001, no pet.). However, under Texas law, strict reliance on the lodestar
method of calculation is not required if the plaintiff can otherwise demonstrate that the fees
sought are reasonable. See e.g., Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc.,
48 S.W.3d 225, 240–41 (Tex. App.—San Antonio 2001, pet. denied).
The first step under the lodestar method is to determine the “lodestar” amount by
multiplying the reasonable number of hours expended on the case by the reasonable hourly rates
for the participating lawyers. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir.
1995). In the second step of the lodestar method, a court considers whether the lodestar figure
should be adjusted upward or downward depending on its analysis of additional factors. Id. The
Texas Supreme Court has identified eight factors to be used by the factfinder to determine the
reasonableness of the fees. Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812,
818–19 (Tex. 1997). These factors are: (1) the time and labor required, the novelty and difficulty

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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; (6) the nature and length of the professional relationship with the client; (7) the
experience, reputation, and ability of the lawyer or lawyers performing their 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 818. If these factors are accounted for in determining
the lodestar amount, they should not be considered when making adjustments. Guity, 54 S.W.3d
at 529.
Attached to Plaintiffs’ motion is the affidavit of Daniel R. Richards, Plaintiffs’ lead
counsel, stating that his law firm incurred $415,031.24 in fees and expenses through litigating
this lawsuit from October 7, 2015 to November 18, 2019 [#174-1 at 1–2]. Attached to the
affidavit are billing records to support the fee request [#174-1 at 3–42].

These records

demonstrate that Mr. Richards and Clark Willis Richards, both of whom are partners at the law
firm of Richards Rodriguez & Skeith LLP, billed Plaintiffs at a rate ranging from $390 to $445
per hour and $370 to $425 per hour, respectively, over the four-year course of this litigation.
Daniel J. Riegel, also a partner at the firm, billed from $325 to $380 per hour over the course of
the litigation. The paralegal assigned to the case billed at a rate ranging from $140 to $160 per
hour. Collectively, the legal team expended 1,236.60 hours litigating this case for a total of
$386,350.50 in attorney’s fees incurred. Plaintiffs also seek to recover $28,680.74 in expenses,
such as attorney travel, shipment costs, and process server fees as part of the fee award.
Plaintiffs’ motion does not address costs as available under Rule 45(d) and 28 U.S.C. § 1920.

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In their response to Plaintiffs’ motion, Defendants do not object to the hourly rate of
Plaintiffs’ attorneys or the amount of time generally expended prosecuting this case. The
undersigned therefore concludes Defendants do not dispute that their rates are reasonable for
complex civil litigation in San Antonio, Texas for attorneys with the expertise and experience of
Plaintiffs’ counsel. Instead, Defendants raise only one objection to Plaintiffs’ fee request—that
Plaintiffs failed to segregate the legal fees incurred on claims where attorney’s fees are
recoverable versus those claims where fees are not recoverable. Defendants do not identify
specific time entries that should have been segregated but instead make the general argument that
Plaintiffs should have segregated those time entries attributable to their TUFTA claims, for
which they may recover fees, and for those claims on which they did not prevail, namely their
Lanham Act claims, which were abandoned at trial.
Defendants are correct that “[i]n order to show the reasonableness and necessity of
attorney’s fees, [Plaintiffs are] required to show that the fees were incurred . . . on a claim which
allows recovery of such fees.” Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.
1991), holding modified by Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006).
However, the Texas Supreme Court recognizes an exception to this duty to segregate where the
“fees rendered are in connection with claims arising out of the same transaction and are so
interrelated that their prosecution or defense entails proof or denial of essentially the same facts.”
Id. at 11 (internal quotation and citation omitted). In such instances, the party moving for
attorney’s fees may recover the entire amount covering all claims. Id.
Plaintiffs modified their fee request in their reply [#182] in light of Defendants’
segregation argument and identified several time entries that should have been segregated as
non-recoverable because the time was expended solely to research and articulate the actual legal

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theories for their Lanham Act claims, claims which were abandoned at trial and on which they
therefore did not prevail. (Reply [#182] at 4–5.) These time entries amount to $5,848.50 of the
claimed fees. As to all other time entries, Plaintiffs maintain that further segregation is not
required because the facts and evidence underlying all of the claims in this suit, including the
Lanham Act claims, are identical. The undersigned finds Plaintiffs’ argument to be meritorious,
and the Court should enter a fee award in favor of Plaintiffs as modified by their reply.
Plaintiffs prevailed on all of their claims at trial, with the exception of the abandoned
Lanham Act claims. This entire lawsuit was filed and litigated with the purpose of collecting the
unpaid balance on a state-court judgment under the theory that Defendants misappropriated trade
secrets and fraudulently transferred assets to insulate themselves from fulfilling the state-court
judgment. Although Plaintiffs ultimately abandoned their Lanham Act claims regarding PPI’s
trademarks, trade dress, and trade names, the jury relied on the evidence related to the same in
finding that Hughes fraudulently transferred PPI’s intellectual property for her personal benefit.
Accordingly, any evidence developed to support the Lanham Act claims was duplicative of the
evidence submitted in support of Plaintiffs’ TUTSA claims and for establishing their entitlement
to pierce the corporate veil. The only fees subject to segregation are those related to the
development of the legal theories underlying the Lanham Act claims themselves. Accordingly,
Plaintiffs’ requested $386,350.50 in attorney’s fees should be reduced by the $5,848.50
identified as attributable solely to development of the Lanham Act claims by Plaintiffs in their
reply. The undersigned notes that Defendants have not objected to the reasonableness of any of
the expenses associated with this suit (attorney travel time, process server fees, etc.) claimed by
Plaintiffs and therefore Plaintiffs should recover all of the $28,680.74 in expenses identified in
their motion.

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Defendants’ response also vaguely refers to several other categories of time entries, aside
from those related to the abandoned Lanham Act claims, that should not be recoverable, but
Defendants do not develop the bases for these objections. For example, Defendants mention
those fees sought by Plaintiffs that pre-date PPI’s filing for bankruptcy and the hiring of Thomas
as the bankruptcy trustee. Yet Plaintiffs’ reply persuasively argues that these pre-bankruptcy
efforts to collect the judgment and obtain discovery from Hughes were presented as evidence at
trial to demonstrate that Hughes engaged in various legal efforts to avoid answering discovery,
all of which was relevant to the fraudulent transfer elements of concealment of the transfer.
Defendants’ other objections concern those fees incurred responding to Defendants’ 12(b)(6)
motion, making expert designations, and completing “basic discovery.” The legal basis for these
objections is unclear. Plaintiffs’ response to Defendants’ motion to dismiss focused on Pearcy’s
standing to assert claims under TUTSA (Mtn. to Dismiss Response [#16]). Plaintiffs are entitled
to seek fees expended on their successful defense against Defendants’ motion to dismiss and
collecting and developing their evidence and witnesses for trial.
Nor is there any factual basis for Defendants’ objection to recovery for time spent on
Plaintiffs’ summary judgment briefing in May 2018. Plaintiffs’ responses to Defendants’ two
motions for summary judgment defended all the claims asserted in this suit, including the
Lanham Act claims, all of which were based on the same evidence. (Summ. J. Response [#89].)
To the extent there was specific research performed solely on the Lanham Act claims, Plaintiffs
have identified those time entries and conceded that they should be segregated. Finally, the
undersigned is not persuaded by Defendants’ reference to fees incurred regarding Defendants’
trade secret claims. Again, Defendants do not sufficiently develop the basis for this objection
and which time entries they are contesting.

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The jury ultimately found that the Hughes

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fraudulently transferred PPI’s trade secrets. The evidence surrounding these trade secrets was
integral to Plaintiffs’ claims under TUTSA regarding Hughes’s fraudulent transfers. None of
these undeveloped objections to Plaintiffs’ time entries should be sustained or considered in
fashioning Plaintiffs’ fee award.
Finally, those factors set out by the Texas Supreme Court that have not yet been
considered in calculating the lodestar also support Plaintiffs’ requested fee award. See Arthur,
945 S.W.2d at 818. The fees associated with the prosecution of this lawsuit span over four years
and involved complex claims, complex facts, and dispositive motions practice.

Plaintiffs

prevailed on all claims that they pursued at trial. Plaintiffs total fee award should be for
$409,182.74 in fees and expenses.
C.

Post-Trial Motions and Appeal
Plaintiffs also ask the Court to award (1) $100,000.00 for responding to any unsuccessful

post-trial motion or motions for judgment as a matter of law or for new trial; and (2) $35,000.00
for representation in the Fifth Circuit Court of Appeals in the event that this case is appealed and
the judgment not reversed. Defendants have indeed already filed a post-judgment motion for
judgment as a matter of law and for a new trial, and so presumably Plaintiffs have already
incurred additional fees. Nevertheless, the District Court should decline to enter these requested
fees at this time but permit Plaintiffs to file a second request for fees after the resolution of the
post-judgment motion and appeals.
III. Conclusion and Recommendation
Having considered Plaintiffs’ motion, the response and reply thereto, the record in this
case, and the governing law, the undersigned recommends that Plaintiffs’ Motion for Award of
Attorney’s Fees [#174] be GRANTED IN PART as set forth herein.

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IV. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on
all parties by either (1) electronic transmittal to all parties represented by attorneys registered as
a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified
mail, return receipt requested. Written objections to this report and recommendation must be
filed within fourteen (14) days after being served with a copy of same, unless this time period is
modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file
the objections with the Clerk of Court and serve the objections on all other parties. A party filing
objections must specifically identify those findings, conclusions or recommendations to which
objections are being made and the basis for such objections; the district court need not consider
frivolous, conclusive or general objections. A party’s failure to file written objections to the
proposed findings, conclusions and recommendations contained in this report shall bar the party
from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52 (1985);
Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file
timely written objections to the proposed findings, conclusions and recommendations contained
in this report and recommendation shall bar the aggrieved party, except upon grounds of plain
error, from attacking on appeal the un-objected-to proposed factual findings and legal
conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1428–29 (5th Cir. 1996) (en banc).
SIGNED this 23rd day of June, 2020.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE
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