On the afternoon of Monday, August 29, 2022, I submitted my response to the affidavit of attorney J. Mitchell Little.
In my response, I pointed out that Mitch and Tommy had not separated the fees for their TCPA defense from the fees for their “affirmative” defenses (the Judicial Proceedings Privilege and the Doctrine of Attorney Immunity). I added: “Given that Defendants’ attorneys made no attempt to segregate their hours in accordance with well-established Court rules, Plaintiff asks that the Court disallow their request in its entirety.”
I also pointed out that both Mitch and Tommy were acting in multiple roles: attorneys, defendants, and potential witnesses. (By submitting an affidavit, Mitch wasn’t just a potential witness, he was an actual witness.) I cited a case in which a Texas court had not disqualified an attorney for serving in two roles, but the Texas Supreme Court disagreed, affirming that “the trial court abused its discretion by failing to disqualify the attorney based on this dual role.” So I suggested that Judge Bouressa should disqualify both Tommy and Mitch for doing the same thing.
But those were just minor objections. My primary argument was that I should not be liable for paying Mitch and Tommy’s legal fees because they had not provided definitive evidence that I was responsible for those fees.
“Defendants have agreed to cover the costs of the litigation.”
That heading is a quotation from Mitch’s affidavit. But why did Mitch bother to make that representation?
The importance of this seemingly innocuous statement derives from the TCPA’s provision for the circumstances in which attorneys (like Mitch) can recover their fees from plaintiffs (like me):
“If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party court costs and reasonable attorney’s fees incurred in defending against the legal action.”
In other words, if Tommy won his TCPA motion and Judge Bouressa dismissed my libel lawsuit, she would order me to pay the legal fees that Tommy and Mitch had incurred.
But what does it mean to say that legal fees have been “incurred”?
You probably think that “incurred” means something like “to become subject to something as a result of your own behavior or actions,” which also happens to be what the Oxford Dictionary thinks it means. But that’s in English. In Legalese, it has a more intricate meaning.
Courts in Texas have consistently ruled that “incurred” means that the attorneys have already been paid for their time or that they expect to be paid for their time. In other words, a fee is not incurred just because it appears on an attorney’s bill; instead, a fee is incurred if a client pays that fee or if the attorney expects the client to pay it.
(I want to emphasize that this applies only to Texas; interpretations may differ in other states. And I want to doubly emphasize that I’m not a lawyer and this is not legal advice. I hope I’m providing some useful information, but it’s important that you do your own research.)
So when Mitch said that the “defendants have agreed to cover the costs of the litigation,” he was saying that, even if his legal fees had not yet been paid, the defendants had agreed to pay those fees, so those fees had been “incurred” under the terms of the TCPA. And the plaintiff (hey, that’s me!) had to reimburse him.
And because he swore to that statement in an affidavit, the court would accept it as evidence and would assume it to be true unless I could provide evidence to the contrary. But because I was not privy to the payment arrangements among Sonia, Tommy, and S&S, I could not do that.
But I couldn’t help but notice that Mitch didn’t specify which defendants had agreed to cover his fees.
Which Defendants?
But Hank, you say: Mitch said that the “defendants” had agreed to pay his bill! Surely that meant all of the defendants, right?
First, let’s review who the “defendants” in this case were:
- Sonia Bryant, my neighbor.
- Tommy Chase Garrett, Sonia’s lawyer (and, in this case, his own lawyer as well).
- Scheef & Stone (S&S), Tommy’s (and Mitch’s) law firm.
It’s important to note that the Texas Supreme Court has ruled that attorneys who represent themselves have not incurred legal fees. So no matter how much time Tommy and Mitch and any other S&S lawyers had devoted to defending themselves, those were not “incurred” fees. And if the fees were not incurred, I would not have to “pay them back.”
Here’s how I addressed that curious situation in my response:
“This litigation is replete with defendants, most of whom are also attorneys in this litigation. Which defendants have agreed to cover the costs of which attorneys? Have Defendants Scheef & Stone agreed to cover the costs of attorneys Scheef & Stone? (If so, that sounds more like a journal entry than an incurred cost.) Has Defendant Garrett agreed to cover the costs of attorney Garrett?
“Mr. Little, who wrote the Affidavit on which this claim is based, is himself both a defendant in this litigation (in his role as a partner in Scheef & Stone) and an attorney in this litigation. So one surprising but perfectly reasonable interpretation of Mr. Little’s claim is that the affiant Mr. Little is affirming that the defendant Mr. Little has agreed to cover the costs of the attorney Mr. Little.”
I suggested that Mitch’s affirmation that “Defendants have agreed to cover the costs of the litigation” was too ambiguous to be meaningful. And since that was the only “evidence” that the attorneys’ fees had been incurred, I should not be liable for those fees.
But more to the point: Of the three defendants in the case, two of them were also attorneys in the case. By law, I was not responsible for the portion of the fees generated by the time that Tommy had devoted to defending himself. And I was not responsible for the portion of the fees generated by the time that S&S lawyers Tommy and Mitch had devoted to defending S&S. So the only fees for which I might have been responsible were the fees that Tommy and Mitch had billed to my neighbor, Sonia Bryant.
And I would be responsible for those fees only if Sonia had explicitly agreed to be liable for them. Mitch’s ambiguous statement seemed to indicate that was the case. But although I wasn’t in a position to definitively contradict him, I have to admit that I was skeptical. Sonia’s lawyers had filed the Trespass Counterclaim in which they accused me of exposing myself. Why would they expect her to pay for her defense when I sued her because they made that accusation?
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So, what were my hopes when I submitted my response?
First, obviously, I was hoping that the judge would deny Tommy’s TCPA motion to dismiss my lawsuit, because I was looking forward to presenting my case to a jury.
But if the judge did dismiss my lawsuit, I was hoping that she would rule that Mitch’s affirmation about attorneys’ fees was so vague that I didn’t actually owe him any money.
And if that didn’t work out, I was hoping that the judge would rule that I was responsible for only one-third of the legal fees, because I wasn’t responsible for the time the lawyers spent defending themselves.
I knew that waiting for the judge’s ruling would be nerve-wracking, so I was glad that I wouldn’t have to wait very long. I submitted my response at 3:44 PM on Monday, August 29. Judge Bouressa had indicated that she would issue a ruling by the end of the day on Wednesday, August 31. So that meant that I would be in suspense for only a couple of days…
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My response to Mitch’s affidavit
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