Jason Michael Spencer v. Dextral Capital, LP, a Delaware Limited Partnership and Dextral Capital Management Fund, LP, a Delaware Limited Partnership

Affirmed as Modified and Opinion Filed May 1, 2015.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00927-CV

JASON MICHAEL SPENCER, Appellant V. DEXTRAL CAPITAL, LP, AND DEXTRAL CAPITAL MANAGEMENT FUND, LP, Appellees

On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. 11-15530

MEMORANDUM OPINION Before Justices Lang-Miers, Brown, and Stoddart Opinion by Justice Stoddart

Following a bench trial, the trial court rendered judgment in favor of appellees against Jason M. Spencer for actual and punitive damages. The judgment also awarded $85,000.00 in attorney’s fees to Dextral Capital. In two issues, Spencer argues the trial court erred by awarding attorney’s fees to Dextral Capital because it did not prevail on a breach of contract claim and there was legally and factually insufficient evidence to support the amount of the fees. Appellees do not oppose the relief requested by appellant.

Accordingly, we modify the trial court’s judgment to delete the award of attorney’s fees in the amount of $85,000.00 to Dextral Capital. See TEX. R. APP. P. 43.2; McNutt v. Garick Fire Prot., Inc., 225 S.W.3d 657, 657–58 (Tex. App.—El Paso 2006, no pet.) (reversal is proper where appellee confesses error); Ervin v. Wichita County Family Court Services, 533 S.W.2d 947, 951 (Tex. Civ. App.—Fort Worth 1976, no writ). As modified, the trial court’s judgment is affirmed.

/ Craig Stoddart/ CRAIG STODDART JUSTICE

130927F.P05

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S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JASON MICHAEL SPENCER, Appellant On Appeal from the 134th Judicial District Court, Dallas County, Texas No. 05-13-00927-CV V. Trial Court Cause No. 11-15530. Opinion delivered by Justice Stoddart. DEXTRAL CAPITAL, LP, AND Justices Lang-Miers and Brown DEXTRAL CAPITAL MANAGEMENT participating. FUND, LP, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

the third full paragraph on the second page of the final judgment ordering that Dextral Capital recover from Jason Michael Spencer the sum of $85,000.00 as reasonable and necessary attorneys’ fees together with post-judgment interest thereon is deleted.

It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellant JASON MICHAEL SPENCER recover his costs of this appeal from appellees DEXTRAL CAPITAL, LP, AND DEXTRAL CAPITAL MANAGEMENT FUND, LP.

Judgment entered this 1st day of May, 2015.

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