Kem Thompson Frost

On Appeal from the 269th District Court, Harris County, Texas, Trial Court Cause No. 2012–48688
Cheryl S. Cohorn, Houston, TX, for Appellant. Sarnie A. Randle, Jr., Houston, TX, for Appellee.
Panel consists of Chief Justice Frost and Justices Christopher and Busby

OPINION

Kem Thompson Frost, Chief Justice

This case involves a dispute between two parties about the ownership of real property. We must determine whether the evidence was legally sufficient to enable the trial court to find that one party proved superior title from a common source, whether an objection to the trial court's ruling excluding evidence of mental capacity and fraud was preserved for appellate review, and whether sufficient evidence supported awarding $16,292.63 in reasonable attorney's fees. We affirm the judgment as modified.

I. Factual and Procedural Background

The appellee/plaintiff Mae K. Gipson and appellant/defendant Rose Gipson–Jelks are sisters. Mae and her mother, Beulah M. Gipson, jointly purchased a home located on Hopper Road (hereinafter “The Hopper Property”) in June 1974. Mae and Beulah each took a one-half interest in the home. Rose moved into the home with Beulah in the fall of 2005 and resided with Beulah until Beulah passed away in April 2010. After Beulah died, Rose remained on the premises. Mae sought to evict Rose on the grounds that Mae was the sole owner of the property because Beulah had deeded Beulah's one-half interest in the property to Mae in a general warranty deed in 2008. Rose took the position that the warranty deed was invalid because Beulah lacked capacity to execute the deed, and Rose refused to vacate the premises in spite of receiving several eviction notices from Mae.

Mae filed a petition in August 2012 in which she asserted she held title to The Hopper Property and sought a judgment declaring that Mae is the sole owner of The Hopper Property, and a writ of possession. Rose filed a general denial. After a bench trial, the trial court signed findings of fact and conclusions of law followed by a judgment declaring Mae the sole and exclusive owner of The Hopper Property and granting her immediate and exclusive possession of this property. The trial court ordered Rose to vacate The Hopper Property immediately. The trial court awarded Mae attorney's fees in the amount of $16,292.63.

II. Issues and Analysis

A. Sufficiency of the Evidence

Construing Rose's third issue liberally, Rose argues that the evidence is legally insufficient to prove Mae holds title to The Hopper Property.

In particular, Rose argues that Mae did not prove a certified copy of a deed showing a chain of title emanating from and under a common source. To prove a common source, Rose argues, Mae needed to place into evidence a certified copy of the 1974 deed to Mae and Beulah.

When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Seeid. at 827. We must determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id. The factfinder is the only judge of witness credibility and the weight to give to testimony. Seeid. at 819.

A trespass-to-try-title action is the method for determining title to lands, tenements, or other real property. Tex. Prop. Code Ann. § 22.001(a) (West, Westlaw through 2013 3d C.S.). It is the exclusive remedy by which to resolve competing claims to real property. SeeKennedy Con., Inc. v. Forman, 316 S.W.3d 129, 135 (Tex.App.–Houston [14th Dist.] 2010, no pet.). Any suit involving a dispute over the title to land is a trespass-to-try-title action, whatever its form and regardless of whether legal or equitable relief is sought. Id. To recover in a trespass-to-try-title action, the plaintiff must establish a prima facie right of title by proving one of the following: (1) a regular chain of conveyances from the sovereign, (2) a superior title out of a common source, (3) title by limitations, or (4) prior possession, which has not been abandoned. SeeMartin v. Amerman, 133 S.W.3d 262, 265 (Tex.2004); Kennedy Con., Inc., 316 S.W.3d at 135.

In this case, Mae and Rose both claimed an interest in The Hopper Property from a common source. The common source is Beulah's one-half interest in The Hopper Property. When each party claiming title asserts that his respective title derives from the same source, to establish a prima facie right of title, the plaintiff need only demonstrate good title coming from that common source. SeeRogers v. Ricane Enterprises, Inc., 884 S.W.2d 763, 768 (Tex.1994); Reiter v. Coastal States Gas Producing Co., 382 S.W.2d 243, 253, 255 (Tex.1964).

Rose argues that Mae has not met her burden because Mae did not introduce the 1974 deed granting ownership of The Hopper Property to Mae and Beulah. But, Mae and Rose both agree that the 1974 deed granted a one-half interest in the property to Mae and a one-half interest in the property to Beulah. Both parties assert that they have a claim to The Hopper Property because they have a claim to Beulah's one-half interest in the property. Because Beulah's one-half interest in the property is the common-source of their competing claims, Mae needed to prove only that she had a superior title to Beulah's one-half interest. SeeRogers, 884 S.W.2d at 768; Reiter, 382 S.W.2d at 253 & 255.

The trial evidence contains a 2008, notarized general warranty deed conveying Beulah's one-half interest in The Hopper Property to Mae. In addition to the warranty deed, Mae testified that her mother wanted to deed the property to her. Mae's granddaughter and the notary both testified that they were present when Beulah signed the deed. Mae's granddaughter stated that Beulah signed the deed of her own free will. We conclude that the record contains sufficient evidence to enable a reasonable factfinder to determine that Mae had superior title from a common source. SeeOrca Assets G.P. LLC v. Burlington Resources Oil, 464 S.W.3d 403, 407 (Tex.App.–Corpus Christi 2015, pet. filed) (mem.op.). We overrule Rose's third issue. SeeRogers, 884 S.W.2d at 768; Reiter, 382 S.W.2d at 253, 255; Orca Assets, 464 S.W.3d at 407.

B. Attorney's Fees

In her second issue, Rose argues the trial court erred in awarding attorney's fees to Mae because (1) there is no statutory or contractual basis for the award, and (2) there was no evidence that the attorney's fees were reasonable. As a prerequisite to presenting a complaint for appellate review, a party generally must have presented its complaint to the trial court by timely request, objection, or motion with sufficient specificity to make the trial court aware of the complaint. SeeTex.R.App. P. 33.1(a); Dugas v. Dreyer, No. 14–96–00336–CV, 2004 WL 438498, at *3 (Tex.App.–Houston [14th Dist.] Mar. 11, 2004, no pet.) (mem. op.). Complaints regarding alleged error in awarding attorney's fees are subject to this rule. See Dugas, 2004 WL 438498, at *3; Jimoh v. Nwogo, No. 1–13–00675–CV, 2014 WL 7335158, at *4 (Tex.App.–Houston [1st Dist.] Dec. 23, 2014, no pet.) (mem.op.). But, in a bench trial, a party may raise a complaint regarding the sufficiency of the evidence to support attorney's fees for the first time on appeal. Jimoh, 2014 WL 7335158, at *4. An argument that there was no evidence during a bench trial that attorney's fees were reasonable is a sufficiency-of-the-evidence complaint that may be raised for the first time on appeal. In re Q.D.T., No. 14–09–00696, 2010 WL 4366125, at *9 (Tex.App.–Houston [14th Dist.] Nov. 4, 2010, no pet.) (mem.op.).

The trial court made a finding of fact that $16,292.63 was a reasonable attorney's fee and awarded Mae $16,292.63 in attorney's fees. Rose never objected to the award of attorney's fees in the trial court or in her motion for new trial. Rose did not preserve error in the trial court as to her complaint that there is no statutory or contractual basis for the award. SeeScally v. Scally, No. 14–09–00344–CV, 2010 WL 3864924, at *2 (Tex.App.–Houston [14th Dist.] Oct. 5, 2010, no pet.) (mem.op.). Rose may raise the argument that there is no evidence supporting a determination that the award of attorney's fees is reasonable for the first time on appeal, however. In re Q.D.T., 2010 WL 4366125, at *9.

The reasonableness of attorney's fees is a question of fact to be determined by the trier of fact. Id. The party seeking to recover attorney's fees has the burden of proof. Id. A court may not take judicial notice that usual and customary fees are reasonable unless the trial court awards attorney's fees under section 38.001 of the Texas Civil Practice and Remedies Code. SeeTex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 2008); Charette v. Fitzgerald, 213 S.W.3d 505, 514–15 (Tex.App.–Houston [14th Dist.] 2006, no pet.) (mem. op.). In this case, the trial court did not award attorney's fees under section 38.001. Mae had the burden to prove the reasonableness of the attorney's fees she sought. In re Q.D.T., 2010 WL 4366125, at *9. The reasonableness of fees must be supported by competent evidence. Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 752 (Tex.App.–Houston [14th Dist.] 2005, no pet.).

Mae's counsel testified that his services were necessary in this case, that he was familiar with the standard prevailing rates and fees for services of this type, and that his fees were in compliance with local and state bar rules. He testified that he charged $350 per hour and that he expended a total of 44.05 hours on the case, and that this work was necessary to bring the matter to a just conclusion. The evidence includes an itemized invoice showing how this time was spent. We agree with our dissenting colleague that this testimony is sufficient to prove that the work he did was necessary. But, to prove that the attorney's fees are reasonable, Mae needed to show that the fee for that work was reasonable.

Mae's counsel did not testify that his rate of $350 per hour was reasonable, however, nor did he testify that his fee of $350 per hour was within the standard prevailing rate.

Our dissenting colleague concludes that Mae's counsel's statement that his fees were in compliance with local and state bar rules is evidence that he charged a reasonable rate. But, this statement is not a statement that a fee is reasonable. A fee complies with the state bar rules if the fee is not “unconscionable.”

The record does not reveal any evidence that $350 per hour is a reasonable rate.

Because the award of attorney's fees is not supported by legally sufficient evidence that the fees were reasonable, we conclude the trial court erred in awarding attorney's fees in the amount of $16,292.63. Rose's second issue is sustained. SeeIn re Q.D.T., 2010 WL 4366125, at *10.

Accordingly, we modify the judgment to delete the award of attorney's fees. See id.

C. Preservation of Error: Evidence of Mental Capacity

In her first issue, Rose asserts the trial court erroneously excluded evidence of mental capacity and fraud during the trial. At trial in September 2013, Rose indicated that she intended to introduce evidence to prove that the warranty deed was invalid because (1) Beulah lacked mental capacity to sign the deed and (2) Mae fraudulently induced Beulah to sign the deed.

To preserve error on the ground that evidence was improperly excluded, a party must inform the trial court of the substance of the evidence by an offer of proof, unless the substance was apparent from the context. SeeTex.R. Evid. 103(a)(2); In re N.R.C., 94 S.W.3d 799, 806 (Tex.App.–Houston [14th Dist.] 2002, pet. denied). Rose did not make an offer of proof describing the evidence she sought to introduce on the issues of mental capacity and fraud. The record reveals that the only time Rose made an offer of proof was after the trial court sustained an objection to a video record of Beulah because the video violated the rule against hearsay. Rose did not make an offer of proof regarding the evidence she sought to introduce on the issues of mental capacity and fraud, and the substance of this evidence was not apparent from the context. Therefore, Rose did not preserve error in the trial court as to this issue. SeeIsmik v. Ibrahimbas, No. 14–10–00057–CV, 2011 WL 2421017, at *6 (Tex.App.–Houston [14th Dist.] Jun. 16, 2011, no pet.) (mem.op.). We overrule Rose's first issue. See id.

III. Conclusion

The evidence is legally sufficient to prove that Mae holds title to The Hopper Property. Rose did not preserve for appellate review her argument that the trial court erred in excluding evidence of fraud and mental capacity. Mae did not present legally sufficient evidence that her attorney's fees were reasonable. Accordingly, we modify the trial court's judgment to delete the award of attorney's fees. We affirm the judgment as modified. (Christopher, J. dissenting).

Tracy Christopher, Justice, dissenting.

I respectfully dissent because I believe there is some evidence that the attorney's fees were reasonable. The majority concludes that there is no evidence of reasonableness because Mae's counsel failed to use the “magic words” and specifically say that his fees were reasonable. The Supreme Court has rejected the concept that magic words are necessary in an expert's opinion. SeeStodghill v. Tex. Empl'rs Ins. Ass'n, 582 S.W.2d 102, 105 (Tex.1979) (a medical expert need not use the exact magic words “reasonable medical probability” if the testimony is sufficient to show this is the substance of what the expert is saying). I believe that the substance of counsel's testimony and the other evidence in the case shows reasonableness.

1. “It is my opinion that the work performed by me on the Plaintiff's behalf was necessary in order to bring this matter to a just conclusion.”

The Supreme Court has defined a “reasonable fee” as “one that is not excessive or extreme, but rather moderate or fair.” SeeGarcia v. Gomez, 319 S.W.3d 638, 642 (Tex.2010). The Supreme Court relied on both Webster's and Black's Law Dictionary. Id. at 642 n. 3; see also Webster's Ninth New Collegiate Dictionary 981 (1984) (defining the adjective “reasonable”); Black's Law Dictionary 1272 (7th ed.1999) (defining “reasonable” as “fair, proper, or moderate under the circumstances”).

While Mae's counsel failed to say that his fees were reasonable, he did testify as follows: “It is my opinion that the work performed by me on the Plaintiff's behalf was necessary in order to bring this matter to a just conclusion.” Webster's defines “just” as “having a basis in or conformity to fact or reason: reasonable.” See Webster's Ninth New Collegiate Dictionary 655 (1984). Black's defines “just” as “legally right; lawful; equitable.” See Black's Law Dictionary 868 (7th ed.1999). So Mae's counsel testified that his fees were necessary in order to bring the suit to a reasonable or legally right conclusion. Certainly this is some evidence that his fees were also reasonable. How else would there be a reasonable conclusion to the suit if his fees were unreasonable? How else would there be a legally right conclusion to the suit if he was arguing for unreasonable fees?

2. “Fees do coincide and are in compliance with the state bar rules governing attorney's fees.”

Mae's counsel testified that the fees “do coincide and are in compliance with the state bar rules governing attorney's fees.” The majority in Footnote Three contends that this statement is not proof of reasonableness, but I disagree. The state bar rules governing attorney's fees are found in Rule 1.04, which provides as follows:

A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or an unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable.
Tex. Disciplinary R. Prof'l Conduct 1.04(a), reprinted in Tex. Gov't Code Ann. tit. 2, subtit. G, app. A (West, Westlaw through 2013 3d C.S.) (Tex. State Bar R. art. X, § 9). By stating that his fees were in compliance with the state bar rules, Mae's counsel effectively testified that his fee was not unconscionable and that, as a competent lawyer, he has formed a belief that the fee is reasonable.
3. The Arthur Andersen factors

The state bar rules also contain a list of factors that may be considered in determining the reasonableness of a fee. SeeRule 1.04(b). These rules were adopted by the Supreme Court as the standard to use when assessing the reasonableness of fees. SeeArthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997). By testifying that his fees are in compliance with the state bar rules, he has testified that his fees meet the standard for reasonableness.

In addition there is other evidence in the record to support some of the Arthur Andersen factors—factors (1), (3), (4), (6) and (7). Id. I detail that evidence below.

a. The time and labor required, the novelty and difficulty of the questions involved and the skill required to perform the legal service properly.

Mae's counsel provided detailed time records of his time for each service provided to Mae in a four page exhibit. The fee statement, admitted without objection, consisted of a detailed itemization of date of work, a description of services provided, and the number of hours per service at a rate of $350 per hour.

Mae testified that she originally filed suit in the justice of the peace court and obtained an order to vacate the property but that Rose appealed to county court. Just as the case was about to be called to trial in county court, Rose filed suit in district court. Then just as that suit was to be called to trial, Rose dismissed that case. Mae then had to file another suit, which is the suit in question.

Mae's counsel testified that he took over the case from another lawyer before the first district court case was dismissed. He testified that the case file from previous counsel was a sizeable file—about a red rope and a half—and that he had to prepare for trial twice.

b. The fee customarily charged in the locality for similar legal services.

Mae's counsel testified that he was familiar with the standard prevailing rates and fees for this type of legal services. Rose's counsel did not dispute his rate of $350 per hour, nor offer an alternative rate. SeeGarcia, 319 S.W.3d at 641 (if the matter is truly in dispute, opposing counsel should question the attorney about the reasonableness of his fee).

c. The amount involved and the results obtained.

The trial court was aware that this case—a family dispute—involved title to real property in Houston and a request to evict a tenant. Although no evidence was presented as to the value of the property, Mae testified that the house could be leased for approximately $700 or $800 per month and that Rose had lived in the house rent-free since her mother's death in April of 2012, a total of 18 months of lost rent ($12,600–$14,400). Mae also testified that she paid the taxes and insurance on the property. Mae won the lawsuit and was awarded title to the property and the eviction of Rose.

d. The nature and length of the professional relationship with the client.

Mae's counsel testified to the fact that he had been representing Mae for over a year and that she had paid some of his bills.

e. The experience, reputation and ability of the lawyer performing the services.

Mae's counsel testified; “I'm an attorney licensed to practice law in the State of Texas, having been so licensed since 1975. I'm board certified in personal injury trial law by the Texas Board of Legal Specialization, having been so certified since 1984. I have handled many, many cases of this type.” The Texas Board of Legal Specialization notes that there are over 70,000 attorneys licensed to practice in Texas, while only 7,000 have earned the right to be publicly recognized as board certified. See http://www.tbls.org/Default.aspx.

Our court has concluded that “the trial court does not need to hear evidence on each factor but can consider the entire record, the evidence presented on reasonableness, the amount in controversy, the common knowledge of the participants as lawyers and judges, and the relative success of the parties.” Messier v. Messier, 458 S.W.3d 155, 2015 WL 452171, *8 (Tex.App.–Houston [14th Dist.] Jan. 27, 2015, no pet.).

The majority relies heavily upon In re Q.D.T., No. 14–09–00696, 2010 WL 4366125, at *9 (Tex.App.–Houston [14th Dist.] Nov. 4, 2010, no pet.) (mem. op.). The record on fees in that case is remarkably different from this one. There were:

• no itemized invoices;

• no statement that the fees were necessary to bring the matter to a just conclusion; and

• no testimony that the fees complied with the state bar rules on fees.
Therefore, Q.D.T. is not on point.

I believe there is some evidence of the reasonableness of fees in this case and I would affirm the award of fees.