Pesca Holding LLC v. Bengt Skoldeberg and Gudrun Skoldeberg

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-24-00642-CV

PESCA HOLDING LLC,
Appellant

v.

Bengt SKOLDEBERG and Gudrun Skoldeberg,
Appellees

From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2019CI07873
Honorable Antonia Arteaga, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Irene Rios, Justice
Lori Massey Brissette, Justice
Adrian A. Spears II, Justice

Delivered and Filed: March 18, 2026

AFFIRMED IN PART; REVERSED AND RENDERED IN PART

Appellant Pesca Holding, LLC (“Pesca”) appeals the trial court’s final take-nothing

judgment rendered in favor of appellees Bengt Skoldeberg and Gudrun Skoldeberg (collectively,

“the Skoldebergs”). Pesca bought a business and assets of another business from the Skoldebergs

and later sued the Skoldebergs for fraud arising from the purchase. A jury found in favor of the

Skoldebergs. After the jury was dismissed, the Skoldebergs sought attorney’s fees pursuant to a
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provision in the purchase agreement. Over Pesca’s objection, the trial court held a second jury

trial on attorney’s fees.

In its first issue, Pesca argues the Skoldebergs waived their right to attorney’s fees when

they failed to submit a jury question on attorney’s fees in the first trial, the trial court erred by

holding the second jury trial on attorney’s fees absent a formal agreement by the parties, and the

subsequent award of attorney’s fees should be reversed. In its second issue, Pesca argues that even

if the trial court was permitted to hold a second jury trial on attorney’s fees, the trial court

nevertheless erred by excluding Pesca’s experts from testifying to rebut the reasonableness and

necessity of the attorney’s fees. In its third issue, Pesca argues it proved its fraud claim as a matter

of law, and the jury’s conclusion that the Skoldebergs did not commit fraud is against the great

weight and preponderance of the evidence.

We hold there was sufficient evidence for the jury to conclude the Skoldebergs did not

commit fraud. We also hold the record does not contain a clear and unambiguous agreement that

the parties agreed to try attorney’s fees separately from liability. Thus, the Skoldebergs’ waived

their right to attorneys’ fees when they failed to submit a question on attorney’s fees to the first

jury. Because we conclude the trial court erred when it held a second jury trial on attorney’s fees,

we need not consider whether it was error to exclude Pesca’s experts’ testimony in the second trial.

Accordingly, we reverse the trial court’s award of attorney’s fees, and we affirm all other portions

of the trial court’s judgment including the award of court costs and the trial court’s take-nothing

judgment in the Skoldebergs’ favor.

BACKGROUND

Pesca Holding, LLC (“Pesca”) is a holding company that owns a window coverings

business called BTX Holdings, LLC (“BTX”). Texas Sun & Shade, Inc. (“TSS”) is a retail

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business that sells window coverings and Vasa Window Coverings, Inc. (“VASA”) manufactures

window coverings. Pesca entered into an agreement with the Skoldebergs to purchase TSS and

the assets of VASA. According to Pesca, VASA’s financial disclosures had a line item labeled

“customer deposits” that purportedly represented 50% customer deposits on undelivered orders.

Pesca alleged it was under the impression that VASA had approximately $688,000 worth of

undelivered sales, and the $344,000 line item made up the 50% customer deposits on those sales.

After Pesca purchased TSS and the VASA assets it discovered that most of the $344,000 deposits

reflected on VASA’s financial disclosures were actually cash advances from TSS for future sales

rather than customer deposits from current sales. According to Pesca’s live pleading, rather than

the hundreds of thousands of dollars’ worth of sales allegedly portrayed by the financial

disclosures, VASA did not have any outstanding orders at the time of the transaction. Pesca then

sued the Skoldebergs for fraud and statutory fraud.

After a five-day jury trial, the jury found there was no fraud in the transaction. However,

the Skoldebergs failed to submit a jury question on the reasonableness and necessity of attorney’s

fees. Over a month later, after the jury was dismissed but before the trial court rendered final

judgment, the Skoldebergs filed a motion requesting the trial court award them approximately

$756,000 in attorney’s fees and $50,000 in costs. In response, Pesca filed a motion to strike the

Skoldebergs request for attorney’s fees, arguing the Skoldebergs waived their right to attorney’s

fees when they failed to submit a question on attorney’s fees to the jury that determined liability.

Over Pesca’s objection, the trial court stated the parties agreed to try attorney’s fees

separately and held a second jury trial on attorney’s fees. Pesca sought to call two of its own

attorneys as experts to testify regarding the reasonableness and necessity of the attorney’s fees

sought by the Skoldebergs. The Skoldebergs objected claiming Pesca failed to timely designate

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the attorneys as experts under the docket control order (“DCO”) for the first jury trial on liability.

Pesca argued the timeline in the DCO applied only to the first jury trial and argued it should be

given leave to designate experts to contest the Skoldebergs’ motion for attorney’s fees, which was

not filed until after the conclusion of the first trial. The trial court sustained the Skoldebergs’

objection and excluded the testimony of two of Pesca’s experts because they were not timely

designated under the DCO that was in place for the first jury trial. The jury in the second trial on

attorney’s fees awarded the Skoldebergs $800,000 in attorney’s fees, $50,000 in expenses, and

$109,500 in contingent appellate attorney’s fees should Pesca appeal. Pesca appeals.

DISCUSSION

In its first issue, Pesca argues the Skoldebergs waived their right to attorney’s fees when

they failed to submit a jury question on attorney’s fees in the first trial, and the trial court erred by

holding the second jury trial on attorney’s fees absent a formal agreement by the parties. Pesca

contends the subsequent award of attorney’s fees should be reversed. In its second issue, Pesca

argues that even if the trial court was permitted to hold a second jury trial on attorney’s fees, the

trial court nevertheless erred by excluding Pesca’s experts from testifying to rebut the

reasonableness and necessity of the attorney’s fees. In its third issue, Pesca argues it proved its

fraud claim as a matter of law, and the jury’s conclusion that the Skoldebergs did not commit fraud

is against the great weight and preponderance of the evidence. We address Pesca’s third issue

first.

SUFFICIENCY OF THE EVIDENCE SUPPORTING THE JURY’S TAKE-NOTHING JUDGMENT

Pesca, as the plaintiff, bore the burden of proof on its fraud claims. On appeal, Pesca

challenges the legal and factual sufficiency of the evidence supporting the jury’s adverse findings

on Pesca’s fraud claims.

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When a party attacks the legal sufficiency of an adverse finding that it has the burden to

prove, the party must demonstrate on appeal that the evidence establishes, as a matter of law, all

vital facts in support of the issue. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

“In reviewing a ‘matter of law’ challenge, [we] must first examine the record for evidence that

supports the finding, while ignoring all evidence to the contrary.” Id. “If there is no evidence to

support the finding, [we] will then examine the entire record to determine if the contrary

proposition is established as a matter of law.” Id. We will reverse only if the party who bore the

burden of proof conclusively establishes its claim. Id.

When a party attacks the factual sufficiency of an adverse finding on an issue that it has

the burden to prove, the party must demonstrate on appeal that the adverse finding is against the

great weight and preponderance of the evidence. Id. at 242. We must consider and weigh all the

evidence and can set aside the jury’s verdict only if the evidence is so weak or if the finding is so

against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.

“To prevail on a fraud claim, a plaintiff must show: (1) the defendant made a material

representation that was false; (2) the defendant knew the representation was false or made it

recklessly as a positive assertion without any knowledge of its truth; (3) the defendant intended to

induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably

relied upon the representation and suffered injury as a result.” JPMorgan Chase Bank, N.A. v.

Orca Assets, G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018) (internal quotation marks omitted).

To establish statutory fraud in a stock transaction, a plaintiff must show that “the defendant made

a false representation of a past or existing material fact to the plaintiff for the purpose of inducing

the plaintiff to enter into a contract, and that the plaintiff relied on the representation in entering

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into that contract.” 1 Garza v. Garza, No. 04-11-00310-CV, 2013 WL 749727, at *5 (Tex. App.—

San Antonio Feb. 27, 2013, no pet.) (mem. op.). “The elements of statutory fraud are essentially

identical to the elements of common law fraud, except that, to recover actual damages, statutory

fraud does not require proof that the defendant made a material, false representation knowing it to

be false or made it recklessly as a positive assertion without any knowledge of its truth.” Id. “Like

common-law fraud, the plaintiff’s reliance in statutory fraud must be justifiable.” Coldwell Banker

Whiteside Assocs. v. Ryan Equity Partners, Ltd., 181 S.W.3d 879, 888 (Tex. App.—Dallas 2006,

no pet.) (citing TCA Bldg. Co. v. Entech, Inc., 86 S.W.3d 667, 674 (Tex. App.—Austin 2002, no

pet.)); Lake v. Cravens, 488 S.W.3d 867, 895 (Tex. App.—Fort Worth 2016, no pet.) (“Indeed,

reliance is a necessary element of a statutory fraud claim, and we assume that the reliance must

have been justifiable.”); Nelson v. McCall Motors, Inc., 630 S.W.3d 141, 147 (Tex. App.—

Eastland 2020, no pet.).

To prevail in a legal sufficiency challenge on the common law fraud claim, Pesca was

required to prove as a matter of law that the $344,000 customer deposit entry was a material

misrepresentation that the Skoldebergs knew was false or was recklessly made as a positive

assertion without knowledge of its truth with the intent to induce Pesca to enter into the agreement

to purchase TSS and the VASA assets, and Pesca justifiably relied on the entry in entering into the

agreement. To prevail in a legal sufficiency challenge on its statutory fraud claim, Pesca must

show the Skoldebergs made a false representation of a material fact with the intent to induce Pesca

1
Initially, we question whether Pesca had a viable statutory fraud claim regarding the alleged misrepresentation in the
VASA balance sheet. Statutory fraud is limited to “a transaction involving real estate or stock in a corporation or joint
stock company . . . .” TEX. BUS. & COM. CODE ANN. § 27.01(a). Pesca claims the customer deposits were reflected
as accounts receivable rather than intercompany loans on VASA’s financials. However, Pesca did not purchase stock
in VASA; rather, it only purchased VASA’s assets. Nevertheless, we conclude that even if Pesca had a viable statutory
fraud claim regarding the purchase of VASA’s assets, there is sufficient evidence to support the jury’s take-nothing
verdict.

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to enter into the agreement to purchase TSS and the VASA assets, and Pesca justifiably relied on

that representation.

To prevail in a factual sufficiency challenge, Pesca must show that the evidence supporting

those elements as applied to these facts is so weak and against the great weight of the evidence

that it is clearly wrong and unjust.

Davide Pesca (“Davide”), an owner of Pesca, testified he could determine from the

financial disclosures provided before he purchased TSS and the VASA assets that VASA was not

a profitable company. Davide testified he believed the financial disclosures showed VASA had a

significant number of customer deposits which indicated there was a large backlog of orders.

Davide believed he could clear VASA’s backlog and make the business profitable within a year.

Davide admitted the brokerage firm that the Skoldebergs retained to help sell their

businesses set up a virtual data room where Pesca could review documents relating to the

businesses before he purchased them. The contents of the virtual data room were admitted into

evidence without objection. The table of contents for the virtual data room broke down the details

of TSS’s transactions with VASA and included items labeled in the table of contents as “Cash

Advances to VASA on future orders[,]” “Cash Advances to VASA on orders[,]” “Details of

Receiva[bl]e VASA for 2018 and 2017[,]” and “VASA-Details of advances and orders coded to

AP.” A review of those documents shows that TSS made substantial cash advances to VASA

throughout 2017 and 2018. One of the Skoldebergs’ experts testified that these documents were

available in the virtual data room before Pesca entered into the agreement to purchase TSS and the

VASA assets. The expert testified that it is clear from these reports that “TSS was making regular

and frequent . . . checks to VASA in large[,] rounded amounts.” The expert essentially testified

that customer deposits in “large[,] rounded amounts” should have put Pesca on notice that these

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are not current orders because “the typical average size of an order that VASA would receive

would be significantly smaller than [$20,000, $30,000, and], $40,000.” She further testified that:

“[A] deposit is typically a percentage of your order value. So it would be a very specific number.

You would expect it to not be perfectly rounded and large in the way that these items are

presented.” The expert went on to say that these documents were presented in response to a

specific request by Pesca during due diligence for the details related to the VASA receivables, and

the items expressly state there were “cash advances to VASA for future orders.”

The Skoldebergs both testified that they did not prepare the financial documents Davide

reviewed and that they relied on their CPA, bookkeeper, and other professionals in preparing the

documents. Davide stated that when he asked about the VASA accounts receivable in the TSS

books, he was told by a representative of the brokerage firm that they were customer deposits sent

to VASA from TSS for outstanding customer orders. However, the jury could either have

disbelieved Davide’s testimony, or could have concluded the misrepresentation, if any, was not

made by the Skoldebergs.

Two different CPAs, who provided expert testimony on the Skoldebergs’ behalf, testified

that some of the “customer deposits” on VASA’s books were for future orders from TSS. One of

the experts explained when VASA received a customer order, the cash deposit would be reflected

as an asset in the cash account and then there would be a corresponding liability labeled as a

customer deposit until the order was fulfilled. When the order was fulfilled, the liability would be

removed. The future customer deposits were reflected as accounts receivable on TSS’s balance

sheet and as liabilities on VASA’s balance sheet. Both experts testified these categorizations were

proper, longstanding accounting practices rather than misrepresentations. One of the experts

testified that Davide had all the information necessary to cross-reference TSS’s and VASA’s books

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to identify which customer deposits were for current orders and which were cash advances for

future orders. The jury could have concluded the CPA’s decision to label the payments from TSS

to VASA as customer deposits was an accounting classification rather than intentional

misrepresentations to induce Pesca into buying the businesses. This position becomes even more

reasonable considering there were documents in the virtual data room that expressly stated the TSS

customer deposits were for future orders. See Roxo Energy Co., LLC v. Baxsto, LLC, 713 S.W.3d

404, 408 (Tex. 2025) (“To prove justifiable reliance, [a plaintiff] must show that (1) it actually

relied on the defendant’s representation; and (2) such reliance was justifiable.”).

When asked whether he ever inquired with the Skoldebergs about the customer order

backlog, Davide testified that he only asked “if there was anything we needed to know, [or]

anything they didn’t tell us that we should know about the businesses.” According to Davide, the

Skoldebergs said everything is “good and correct.” Even though Davide testified that he relayed

his intention to move VASA’s backlog to BTX, there is no indication that he communicated to the

Skoldebergs that he believed the backlog consisted of $688,000 worth of orders. The Skoldebergs

could have presumed Davide was talking about current orders rather than the cash advances for

future orders when they told him everything is good and correct.

In addition, the jury could have also disbelieved Davide’s testimony that he never saw or

heard any reference to “future” orders when referring to the $344,000 entry for customer deposits.

The jury could have also rejected Davide’s testimony that he believed any reference to “future”

orders pertained to actual, current customer deposits for active jobsites that would not be

completed for the next two or three years. In sum, the jury could have reasonably concluded that

the Skoldebergs answer to Davide’s non-specific question fell short of an intentional

misrepresentation to induce Pesca into buying the businesses, especially considering the jury heard

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testimony that the customer deposits entry on VASA’s books included deposits from TSS for

future orders.

When analyzing the justifiable reliance element of fraud, the supreme court has held that

“[i]n an arm’s length transaction, the defrauded party must exercise ordinary care for the protection

of his own interests.” Orca Assets G.P., 546 S.W.3d at 654 (alterations omitted). “A failure to

exercise reasonable diligence is not excused by mere confidence in the honesty and integrity of the

other party.” Id. (alterations omitted). “And when a party fails to exercise such diligence, it is

charged with knowledge of all facts that would have been discovered by a reasonably prudent

person similarly situated.” Id. (internal quotation marks omitted). “To this end, that party cannot

blindly rely on a representation by a defendant where the plaintiff’s knowledge, experience, and

background warrant investigation into any representations before the plaintiff acts in reliance upon

those representations.” Id. (internal quotation marks omitted).

Davide admitted that two of his CPAs, his lawyer, and his lawyer’s paralegal were granted

access to the virtual data room as well, but he chose to handle the due diligence himself without

input from these professionals. Davide further admitted that he did not review all the documents

provided in the virtual data room although he had access to all the documents. Significantly,

Davide admitted that he did not review documents showing the details of VASA’s customer

deposits, the detailed VASA accounts receivable report, or the documents showing cash advances

from TSS to VASA for future orders, even though they were all available to him in the virtual data

room.

It is not unreasonable for the jury to conclude Davide was provided with everything

necessary to determine there was not a substantial backlog of orders, especially considering

Davide’s extensive corporate and business experience. And Davide was permitted by the

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Skoldebergs to contact the Skoldebergs’ accountant with any questions over the financials.

However, Davide chose not to contact the accountant or inquire further into the financials before

he purchased the businesses. Had Pesca done a more thorough job during its due diligence, it may

have discovered that Davide’s own subjective belief that there were $688,000 worth of backlogged

orders was inaccurate or that the “customer deposits” were for “future” orders rather than current,

pending orders.

We cannot conclude as a matter of law that the customer deposit entry—in the context of

all the information available in the virtual data room and the explanations from the CPA experts—

or the Skoldebergs’ statement that everything was “good and correct” was a material

misrepresentation that Pesca justifiably relied upon and was intended to induce Pesca into

purchasing the businesses. We also cannot conclude that the evidence is so weak and against the

great weight and preponderance of the evidence that the jury’s verdict is clearly wrong and unjust.

Because the jury could have reasonably concluded that the Skoldebergs did not materially

misrepresent its customer deposits with the intent to defraud Pesca, or that Pesca could not have

justifiably relied upon the alleged misrepresentations, we conclude the evidence is legally and

factually sufficient to support the jury’s verdict. Accordingly, we must uphold the jury’s verdict

and affirm the trial court’s take-nothing judgment.

Pesca’s third issue is overruled.

ATTORNEY’S FEES

The agreement to purchase TSS and the assets of VASA provided that the non-prevailing

party in any cause of action relating to the agreement shall be liable for the reasonable attorney’s

fees, expenses, and costs of suit incurred by the prevailing party.

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In its first issue, Pesca argues absent a valid agreement to try attorney’s fees separately, the

Skoldebergs waived their right to attorney’s fees when they failed to submit a question on

attorney’s fees at the first trial on liability before that jury was dismissed. Thus, Pesca argues the

trial court erred when it empaneled a second jury for a separate jury trial on attorney’s fees. Pesca

asks this court to reverse the award of attorney’s fees.

A. The Skoldebergs Waived their Claim to Attorney’s Fees

“When a claimant wishes to obtain attorney’s fees from the opposing party, the claimant

must prove that the requested fees are both reasonable and necessary.” Rohrmoos Venture v.

UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 489 (Tex. 2019). The reasonableness and

necessity of attorney’s fees are normally fact issues for the jury, though the parties can agree

otherwise if they wish. Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650,

658 n.38 (Tex. 2009); Rohrmoos, 578 S.W.3d at 489 (“Both elements are questions of fact to be

determined by the fact finder and act as limits on the amount of fees that a prevailing party can

shift to the non-prevailing party.”).

Rule 270 of the Texas Rules of Civil Procedure provides, in relevant part, “that in a jury

case no evidence on a controversial matter shall be received after the verdict of the jury.” TEX. R.

CIV. P. 270. Rule 279 provides, in relevant part, that “[u]pon appeal, all independent grounds of

recovery . . . not conclusively established under the evidence and no element of which is submitted

or requested are waived.” TEX. R. CIV. P. 279; see also State Farm Mut. Auto. Ins. Co. v. Nicastro,

No. 05-23-00362-CV, 2025 WL 399674, at *10 (Tex. App.—Dallas Feb. 5, 2025, pet. denied)

(mem. op.). “[I]t is the responsibility of the party with the burden of proof on a ground of recovery

to request that the issue be submitted to the jury.” Unique Staff Leasing, Ltd. v. Cates, 500 S.W.3d

587, 599 (Tex. App.—Eastland 2016, pet. denied). “In this regard, a party waives its right to

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recover attorney’s fees when it fails to put on evidence of attorney’s fees and fails to request the

trial court to submit a question on attorney’s fees to the jury.” In re State Farm Mut. Auto. Ins.

Co., No. 13-24-00162-CV, 2025 WL 3114462, at *8 (Tex. App.—Corpus Christi–Edinburg

Nov. 6, 2025, orig. proceeding).

Here, the Skoldebergs’ request for attorney’s fees was a contested issue. They failed to

present evidence on attorney’s fees or submit a jury question on the reasonableness and necessity

of attorney’s fees to the jury before the jury was dismissed. Consequently, under Rules 270 and

279 of the Texas Rules of Civil Procedure, the Skoldebergs waived their claim to attorney’s fees

when they failed to present evidence or submit a jury question on their claim for attorney’s fees to

the first jury that determined liability. See Cates, 500 S.W.3d at 599–600 (holding a party waived

its claim to attorney’s fees when it did not submit the issue to the first jury that determined liability

even though a second jury heard the issue); Allstate Fire and Cas. Ins. Co. v. Harper, 706 S.W.3d

460, 466 (Tex. App.—Austin 2024, no pet.) (holding a party waived its right to attorney’s fees

when it failed to submit the question to the jury before the jury was dismissed).

The Skoldebergs argue they did not waive their claim for attorney’s fees because the issue

was submitted to a second jury rather than to the bench and Pesca’s right to have the issue

determined by a jury was not violated. However, the cases cited by the Skoldebergs are either not

persuasive or they are distinguishable.

In Great National Corp. v. Campbell, 687 S.W.2d 450 (Tex. App.—Dallas 1985, writ ref’d

n.r.e.), it is not clear whether the trial court made the decision to have two separate trials before

commencing the first trial. If so, this may have been permissible under Rule 174(b) of the Texas

Rules of Civil Procedure. See In re State Farm Mut. Auto. Ins. Co., 712 S.W.3d 53, 62–63

(Tex. 2025) (orig. proceeding). Based on the scarce facts presented in the opinion, we are unable

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to determine whether that appeal is distinguishable from the case at bar. Moreover, Campbell is

not binding authority on this court.

In Mintz v. Carew, No. 05-16-00997-CV, 2018 WL 833371, at *3 (Tex. App.—Dallas

Feb. 13, 2018, pet. denied) (mem. op.), “the trial court clearly informed the parties—both before

and during the trial—that attorney’s fees would not be presented to the jury.” In a post-trial

hearing, the trial court stated it would not entertain the argument that the appellees waived their

right to attorney’s fees because it had not allowed the appellees to present evidence of attorney’s

fees. Id. The Dallas Court of Appeals concluded that under these facts the appellees did not waive

their right to present evidence on attorney’s fees after the first jury was dismissed. Id. Here, in

contrast, the trial court did not make any ruling on the record regarding a separate trial on attorney’s

fees until after the first jury was dismissed. By that time, the trial court was not permitted to admit

any further evidence on a contested issue that should have been tried to the first jury. See TEX. R.

CIV. P. 270. To be clear, our holding here does not deprive a trial court of its pre-trial discretion

to “order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any

separate issue” under Rule 174(b) of the Texas Rules of Civil Procedure. See TEX. R. CIV. P.

174(b). 2 But the trial court in this case did not make a pre-trial ruling that attorney’s fees would

be tried separately; rather, it ordered a second jury trial on attorney’s fees after the first trial had

concluded even though the issue had already been waived under Rules 270 and 279.

In Commerce & Industry Insurance Co. v. Ferguson-Stewart, 339 S.W.3d 744, 748–49

(Tex. App.—Houston [1st Dist.] 2011, no pet.), during the trial, the law was unclear on whether

the trial court or a jury determines attorney’s fees under section 408.221 of the Texas Labor Code.

2
We note Rule 174 is listed under the heading “Pre-Trial Procedure” in the rules of civil procedure. See Ad Villarai,
LLC v. Chan Il Pak, 519 S.W.3d 132, 138 (Tex. 2017) (relying on the title of a rule of civil procedure to ascertain the
drafter’s intent); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 221
(2012) (“The title and headings are permissible indicators of meaning.”).

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See Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 229 (Tex. 2010) (“The statute is silent on the

critical judge-or-jury question [and] [b]oth parties offer legitimate, reasonable interpretations of

§408.221 . . . .”). Ferguson-Stewart submitted her attorney’s fees’ request in a post-trial motion

for the trial court to decide the issue of attorney’s fees. Ferguson-Stewart, 339 S.W.3d at 748.

The insurance carrier argued Ferguson-Stewart waived her right to attorney’s fees when she failed

to submit the issue to the jury. Id. While the case was on appeal, the supreme court clarified the

law and held it was permissible for a jury to determine attorney’s fees. Id.; see also Crump,

330 S.W.3d at 232 (“[W]e hold that an insurance carrier is entitled to have a jury determine the

disputed amount of reasonable and necessary attorney’s fees for which it is liable under

§ 408.221(c).”). Given the uncertainty in the law when the case was tried, the Houston Court of

Appeals decided to remand the cause so that a jury could determine attorney’s fees. Ferguson-

Stewart, 339 S.W.3d at 748 (“Remand for a jury trial is appropriate when a trial court improperly

fails to heed the request for a jury”). In Discover Prop. & Cas. Ins. Co. v. Tate, 298 S.W.3d 249,

257 (Tex. App.—San Antonio 2009, pet. denied), this court grappled with the same statute and

determined that due to the uncertainty of the law, and in the interest of justice, the cause should be

remanded for a jury trial on attorney’s fees. Both of those cases dealt with the uncertainty of which

factfinder determines attorney’s fees under that particular statutory scheme. But that is not the

situation here.

Finally, in SEECO, Inc. v. K.T. Rock, LLC, 416 S.W.3d 664, 673–74 (Tex. App.—Houston

[14th Dist.] 2013, pet. denied), the appellate court’s decision changed the prevailing party and

remanded the cause for the factfinder to determine the amount of attorney’s fees the newly-minted

prevailing party was entitled to receive. SEECO is clearly distinguishable from this case.

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B. There was not a Valid and Enforceable Rule 11 Agreement to Try Attorney’s Fees Separately

To the extent the Skoldebergs argue there was a valid Rule 11 agreement to try the

attorney’s fees separately, we disagree.

Rule 11 of the Texas Rules of Civil Procedure states that “[u]nless otherwise provided in

these rules, no agreement between attorneys or parties touching upon any suit pending will be

enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it

be made in open court and entered of record.” TEX. R. CIV. P. 11. “To be effective, a Rule 11

agreement must consist of a written memorandum which is complete within itself in every material

detail, and which contains all of the essential elements of the agreement.” Shamrock Psychiatric

Clinic, P.A. v. Tex. Dep’t of Health & Hum. Servs., 540 S.W.3d 553, 561 (Tex. 2018) (internal

quotation marks omitted). “The purpose of Rule 11 is to ensure that agreements of counsel

affecting the interests of their clients are not left to the fallibility of human recollection, or

interpretation, and that the agreements themselves do not become the sources of controversy.” In

re State Farm, 2025 WL 3114462, at *6 (internal quotation marks omitted).

The Skoldebergs do not point us to a valid written Rule 11 agreement regarding attorney’s

fees in the record, and we have not found one upon our own independent review of the record.

Thus, although the trial court insisted that the parties agreed to try attorney’s fees separately, a

valid Rule 11 agreement must have been made in open court and read into the record. We must

determine whether the trial court’s conclusion is supported by the record.

Here, the jury trial on liability concluded on March 1, 2024, and the jurors were dismissed.

The Skoldebergs never presented evidence on the reasonableness or necessity of attorney’s fees,

nor did they submit an attorney’s fees question to the jury. More than a month after the jury that

determined liability was dismissed, the Skoldebergs filed a post-verdict motion requesting the trial

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court declare them as the prevailing parties and requesting an award of attorney’s fees. On May 13,

2024, Pesca filed a motion to strike the Skoldebergs’ request for attorney’s fees arguing the

Skoldebergs have waived their right to attorney’s fees by failing to present evidence and failing to

submit a jury question on their claim for attorney’s fees.

That same day, the trial court held a hearing on the Skoldebergs motion to declare them as

the prevailing party and to consider their request for attorney’s fees. In the hearing, Pesca raised

the topic of whether the Skoldebergs waived their right to attorney’s fees by failing to submit this

issue to the first jury. The transcript of the hearing clearly shows Pesca wanted to urge its motion

to strike the request for attorney’s fees while the Skoldebergs wanted a declaration that they were

the prevailing party from the jury trial on liability. The Skoldebergs also sought to set a second

trial for a jury to determine the attorney’s fees. However, the trial court expressed its desire to

hear the motion to strike the request for attorney’s fees at a later date and proceed with simply

determining who the prevailing party was at trial. Counsel for the Skoldebergs replied: “We’re

fine deferring the decision about the reasonableness and necessity of attorney’s fees to a later date,

depending on the Court’s ruling [on Pesca’s motion to strike the request for attorney’s fees].” The

Skoldebergs’ counsel then stated: “We’d also be willing to stipulate to setting a one-day jury trial

on that because it seemed to be what the motion was going at.” The trial court then asked Pesca’s

counsel if she wanted a jury trial on its motion to strike the request for attorney’s fees. Pesca’s

counsel responded “[y]es” but then asserted the Skoldebergs failed to prove the parties reached an

agreement that the trial court would rule on the attorney’s fees. The trial court then stated the

Skoldebergs’ counsel had agreed to a jury trial “if you would like a jury trial[,]” to which Pesca’s

counsel replied “yes” again. The court then stated:

Or a bench trial. Either way. And I just want to be sure which way you want to
go. Do you want a jury trial on that issue? Or do you want a bench trial on that

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issue? Something to consider. But, respectfully, I am going to allow the actual
determination as to whether or not attorney’s fees are reasonable or the request to
strike attorney’s fees to occur at a later date.

The Skoldebergs point to this exchange to claim that Pesca agreed to submit the issue of attorney’s

fees to a second jury. We disagree.

First, it appears the trial court was asking Pesca whether it wanted to have its motion to

strike attorney’s fees heard by a jury, not whether it agreed to have a second jury trial on attorney’s

fees. While we can’t imagine why that motion would be submitted to a jury, that is the question

the trial court asked. Second, to the extent the Skoldebergs argue the trial court asked Pesca

whether it wanted to have the Skoldebergs’ claim for attorney’s fees submitted to the bench or to

another jury, we note that it appears the trial court may have put the proverbial cart before the

horse. Before inquiring of the parties whether they wished to proceed with a bench trial or a jury

trial, the trial court should have heard the merits of Pesca’s motion to strike attorney’s fees to

determine whether the Skoldebergs waived their right to attorney’s fees.

Simply stated, the record is not a model of clarity about what the parties were agreeing to.

See In re State Farm, 2025 WL 3114462, at *7 (concluding there was not a valid Rule 11

agreement on attorney’s fees because “the ambiguity of the agreement read into the record is the

source of the parties’ controversy, and the varying interpretations of the agreement are subject to

the fallibility of human recollection”). We conclude this exchange is not a clear and unambiguous

agreement to try attorney’s fees separately, especially considering the exchange occurred after the

first jury was dismissed and while Pesca’s motion to strike attorney’s fees remained pending before

the trial court.

The trial court never ruled on Pesca’s motion to strike attorney’s fees. Nevertheless, the

trial court empaneled a second jury to determine the Skoldebergs’ claim for attorney’s fees. Prior

to the commencement of the second jury trial, Pesca re-urged its motion to strike stating “we

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shouldn’t even be [having] this jury trial because . . . the issue of attorney[’s] fees was supposed

to be heard by the [first] jury.” The following exchange then ensued:

Trial Court: “[A]t trial, both parties agreed that attorney[’s] fees would be
determined thereafter. And so—you’re shaking your head in the
negative. Were you present at the time, or do you have a transcript
that says otherwise.”

Pesca’s Counsel: “I think we can get you the transcript. I haven’t looked through it,
maybe I missed it. I don’t believe that’s correct.”

Trial Court: “Okay. I respectfully disagree . . . since I was present and I was here,
and both sides indicated they were going to wait on attorney’s fees.
And if that is not indicated in the record, let me make it clear that both
sides agreed that attorney[’s] fees would be taken up at a different
time. But if you see something in the transcript that is otherwise, feel
free to let me know. Respectfully, though, we have a motion to strike.
[Pesca’s other counsel], can you tell me what that’s about?”

Pesca then argued that there was no agreement of any kind, on the record or otherwise, to

try attorney’s fees separately and contended it was error for the trial court to submit an issue to a

second jury that should have been submitted to the first jury. The trial court again asked Pesca to

provide a transcript showing it did not agree to try attorney’s fees separately. Pesca replied there

is no transcript showing an agreement and essentially argued he would be unable to prove a

negative.

“We determine the scope of a Rule 11 agreement by examining the words used, the

surrounding circumstances, the allegations in the pleadings, and the attitude of the parties with

respect to the issues.” See In re State Farm, 2025 WL 3114462, at *7. These exchanges between

the parties and the trial court do not reflect an agreement among the parties to try attorney’s fees

separately.

The Skoldebergs have not pointed us to an actual agreement read into the record between

the parties to try attorney’s fees separately from the jury trial on liability and we have found no

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such agreement upon our independent review of the record. And the trial court’s memory is not

sufficient since, as stated above, the purpose of Rule 11 is to ensure the terms of agreements are

not left to “the fallibility of human recollection.” See id. at *6.

Absent evidence of an agreement in the record to try attorney’s fees separately, the

attorney’s fee issue should have been submitted to the first jury. Because the Skoldebergs failed

to submit evidence on attorney’s fees, failed to request a jury question regarding the reasonableness

and necessity of their attorney’s fees, and failed to produce an agreement either written or read

into the record that attorney’s fees would be tried separately, we hold the Skoldebergs waived

recovery of attorney’s fees. See Cates, 500 S.W.3d at 600; RDG P’ship v. Long, 350 S.W.3d 262,

277 (Tex. App.—San Antonio 2011, no pet.).

Pesca’s first issue is sustained.

EXPERT TESTIMONY

Because we have determined the Skoldebergs waived their right to attorney’s fees when it

failed to submit a question on the issue in the first jury trial, we need not address Pesca’s second

issue that the trial court abused its discretion when it excluded Pesca’s experts’ testimony from the

second jury trial on attorney’s fees. See TEX. R. APP. P. 47.1 (“The court of appeals must hand

down a written opinion that is as brief as practicable but that addresses every issue raised and

necessary to final disposition of the appeal.”).

CONCLUSION

We reverse the portion of the trial court’s judgment awarding the Skoldebergs attorney’s

fees and render judgment that the Skoldebergs take nothing on their claim for attorney’s fees. We

affirm the trial court’s judgment in all other respects.

Irene Rios, Justice

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