What is the litigation takeaway from Pesca Holding LLC v. Skoldeberg?

Never rely on an informal or "handshake" agreement to handle attorney’s fees after a jury trial; if the fee question isn't in the jury charge and you don't have a signed Rule 11 agreement to bifurcate, you waive your right to fees the moment the jury is discharged.

What is the summary of Pesca Holding LLC v. Skoldeberg?

In Pesca Holding LLC v. Skoldeberg, a jury trial was held regarding alleged fraud in a business sale. Although the defendants prevailed on the liability claims, they failed to include a question about attorney’s fees in the jury charge. The trial court, believing an informal agreement to bifurcate the issues existed, later convened a second jury trial specifically for fees. On appeal, the San Antonio Court of Appeals analyzed whether a party waives attorney's fees by failing to submit them to the initial factfinder. The court held that because attorney’s fees are questions of fact for the jury, they are waived unless the record contains a clear and unambiguous bifurcation agreement, such as a written Rule 11 agreement. Finding no such agreement in the record, the court reversed the $800,000 fee award and rendered a take-nothing judgment.

Is a party's right to recover attorney's fees waived if they fail to submit a jury question on the issue during the liability phase of a Texas trial?

In Texas, the reasonableness and necessity of attorney's fees is a fact issue that must be submitted to the jury. If a party fails to request a jury question on attorney's fees during the trial on the merits, they waive their right to recover those fees, and a trial court cannot typically hold a subsequent hearing or second jury trial to resolve the issue post-verdict.

What is required for a Texas trial court to hold a separate trial on attorney's fees after the liability jury has been dismissed?

A trial court may only hold a separate trial on attorney's fees if the record contains a clear and unambiguous agreement by the parties to bifurcate the issue from the liability phase. Without such an agreement, or a specific procedural rule allowing it, the trial court lacks the authority to convene a second jury to decide fees after the first jury has been dismissed.

Does Texas Business and Commerce Code Section 27.01 apply to a transaction involving the purchase of a company's assets rather than its stock?

No. Under Texas Business and Commerce Code Section 27.01, statutory fraud is specifically limited to transactions involving real estate or stock in a corporation or joint stock company. Texas courts have held that a transaction involving only the purchase of a company's assets, rather than its stock, does not fall within the scope of Section 27.01.

What is the standard for a legal sufficiency challenge in Texas when a party attacks an adverse jury finding on which they bore the burden of proof?

To prevail on a 'matter of law' challenge on appeal, the appellant must demonstrate that the evidence establishes all vital facts in support of their claim as a matter of law. The appellate court first examines the record for evidence supporting the jury's finding; if none exists, it then examines the entire record to determine if the contrary proposition is established as a matter of law.

How do the elements of statutory fraud differ from common law fraud in Texas?

The primary difference is the scienter requirement for actual damages. While common law fraud requires proof that the defendant knew a representation was false or made it recklessly, statutory fraud under the Texas Business and Commerce Code does not require proof of knowledge or recklessness to recover actual damages. However, both claims require the plaintiff to prove justifiable reliance.

What are the essential elements required to prove a common law fraud claim under Texas law?

To prevail on a claim for common law fraud in Texas, a plaintiff must prove: (1) the defendant made a material representation that was false; (2) the defendant knew the representation was false or made it recklessly; (3) the defendant intended to induce the plaintiff to act; and (4) the plaintiff justifiably relied on the representation and suffered injury. (JPMorgan Chase Bank, N.A. v. Orca Assets, G.P., L.L.C.).

Pesca Holding LLC v. Skoldeberg | Texas Family Law Powerhouse

Pesca Holding LLC v. Skoldeberg, 04-24-00642-CV, March 18, 2026.

On appeal from 57th Judicial District Court, Bexar County, Texas.

Synopsis

The San Antonio Court of Appeals held that a prevailing party waives its claim for attorney’s fees by failing to submit a jury question on the issue during the liability trial unless a clear and unambiguous agreement to bifurcate is present in the record. Absent such an agreement, a trial court lacks the authority to convene a second jury trial on fees after the initial jury has been discharged.

Relevance to Family Law

In complex Texas family law litigation—particularly suits involving the enforcement of premarital agreements, breach of fiduciary duty claims in property divisions, or high-conflict SAPCRs where a jury is requested—attorney’s fees are often treated as a "cleanup" item for the court. This case serves as a critical warning: if a jury is the factfinder on the merits, they are the factfinder on fees. Unless you have a signed Rule 11 agreement or an explicit, on-the-record bifurcation order, failing to include attorney’s fees in the jury charge results in a total forfeiture of those fees. Litigators cannot rely on a trial court's "recollection" of an informal agreement to handle fees post-verdict.

Case Summary

Fact Summary

Pesca Holding, LLC (“Pesca”) initiated litigation against Bengt and Gudrun Skoldeberg alleging common law and statutory fraud arising from the purchase of a window coverings business. The crux of the dispute involved whether $344,000 in "customer deposits" on the sellers' financial disclosures were actually cash advances, misleading Pesca into believing the company had a robust pipeline of undelivered sales. The case proceeded to a five-day jury trial. While the jury ultimately returned a take-nothing verdict in favor of the Skoldebergs, the Skoldebergs failed to request or submit a jury question regarding the reasonableness and necessity of their attorney’s fees. After the jury was dismissed, the Skoldebergs moved for an award of over $750,000 in fees. Pesca objected, asserting waiver. The trial court, under the impression that the parties had previously agreed to try fees separately, overrode the objection and convened a second jury trial exclusively for attorney's fees. The second jury awarded the Skoldebergs $800,000 in fees plus appellate contingencies. Pesca appealed, challenging the trial court’s authority to hold the second trial and the sufficiency of the evidence regarding the fraud findings.

Issues Decided

Whether a party waives its right to attorney’s fees by failing to submit a jury question on the issue during the liability phase of a trial.
Whether a trial court may legally convene a second jury trial on attorney’s fees absent a clear and unambiguous agreement between the parties to bifurcate the issue.
Whether the evidence was legally and factually sufficient to support the jury’s take-nothing finding on Pesca’s fraud claims.

Rules Applied

Fact Issue for the Jury: The reasonableness and necessity of attorney’s fees is a question of fact for the jury when a jury trial has been demanded.
Bifurcation Requirements: To deviate from the general rule that all issues must be resolved in a single trial, there must be a clear and unambiguous agreement to bifurcate.
Waiver: Under the Texas Rules of Civil Procedure, a party waives a claim or a ground of recovery if they fail to request a jury question on an essential element of that claim, unless the issue is conclusively established or the parties agreed to a separate bench or jury trial.
Standard of Review for Fraud: To reverse a jury’s negative finding on fraud, the appellant must prove the elements of fraud as a matter of law (legal sufficiency) or show the verdict is against the great weight and preponderance of the evidence (factual sufficiency).

Application

The court first addressed the fraud claims, determining that the jury was within its rights to weigh the conflicting testimony regarding the financial disclosures and justifiable reliance. Because Pesca failed to prove as a matter of law that the Skoldebergs made material misrepresentations with the intent to induce the transaction, the take-nothing verdict was affirmed. The legal battle then shifted to the procedural propriety of the second jury trial on fees. The court scrutinized the record for any evidence of a bifurcation agreement. While the trial court stated that such an agreement existed, the appellate court found no written Rule 11 agreement and no oral agreement transcribed in the record. The Skoldebergs argued that the "conduct" of the parties suggested an agreement, but the court rejected this, holding that for a party to waive their right to have all issues decided by the first jury, the record must reflect a "clear and unambiguous" intent to do so. Because the Skoldebergs bore the burden of proving their fees and failed to submit a question to the first jury, their right to those fees was waived the moment that jury was discharged.

Holding

The Court of Appeals affirmed the take-nothing judgment on Pesca’s fraud claims, finding the evidence sufficient to support the jury’s verdict. The Court reversed the award of attorney’s fees and rendered judgment that the Skoldebergs take nothing on their fee claim. The court held that the absence of a formal bifurcation agreement meant the Skoldebergs waived their fee claim by failing to include it in the initial jury charge. The trial court's attempt to remedy the oversight via a second jury trial was an abuse of discretion and a violation of the procedural requirements for preserving fee claims.

Practical Application

Jury Charge Preparation: In any family law case involving a jury (such as a characterization dispute or a "fault in the breakup of the marriage" claim for disproportionate share), the attorney’s fee question must be in the charge. Do not assume the judge will "handle it" after the verdict.
The Rule 11 Requirement: If you intend to bifurcate fees to simplify the charge or save time, you must execute a Rule 11 agreement specifically stating that "the issue of reasonableness and necessity of attorney's fees is reserved for a separate hearing/trial by the court (or a second jury) following the verdict on liability."
Objection Preservation: If you are the party opposing fees, object the moment the opposing side fails to include a fee question in the charge. If the court attempts to hold a post-verdict hearing without a prior agreement, cite Pesca Holding LLC to argue waiver.

Checklists

Securing the Fee Claim in Jury Trials

Draft a jury question on attorney’s fees (including appellate fees) during the initial charge conference.
Ensure all fee-related evidence is admitted before the close of the liability phase unless a bifurcation order is signed.
If bifurcating, obtain a written Rule 11 agreement signed by all counsel and filed with the court.
Confirm on the record, prior to the jury being sworn in, that fees are being tried separately by agreement.

Defending Against a "Fee Trap"

Monitor the proposed jury charge for the absence of a fee question.
Object to any post-verdict motions for fees that were not supported by a jury finding.
Scrutinize the record for any "ambiguous" discussions in chambers that the court might mistake for a bifurcation agreement.
Move for a final judgment immediately following the discharge of the jury if the fee question was omitted.

Citation

Pesca Holding LLC v. Skoldeberg, No. 04-24-00642-CV (Tex. App.—San Antonio Mar. 18, 2026, no pet. h.).

Full Opinion

Full Opinion Link

Family Law Crossover

This ruling is a potent weapon in Texas divorce cases involving fraud on the community or reimbursement claims. Often, the "merits" of a fraud-on-the-community claim are tried to a jury, but counsel forgets to ask the jury to value the attorney's fees associated with that specific cause of action. If the opposing spouse fails to include that fee question in the charge and lacks a formal bifurcation agreement, you can effectively wipe out their claim for fees entirely, even if they prevail on the fraud claim. In property litigation where the fees can sometimes eclipse the actual waste claim, this "procedural forfeit" is a game-changer. Use Pesca Holding LLC to block any attempt by the trial court to "save" the opposing side’s fees via a post-trial bench hearing. ~~7d117025-4a8a-4f87-8422-7228b182221f~~

Pesca Holding LLC v. Skoldeberg

Litigation Takeaway