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concluding appellate court had “broad discretion” to remand for new trial on attorney's fees where evidence to support attorney's fees was legally insufficient
Summary of this case from In re PyrtleOpinion
NO. 12-11-00161-CV
05-23-2012
IN THE INTEREST OF A.A.L., A.E.L. AND A.N.L., CHILDREN
APPEAL FROM THE 321ST JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Albert Randall Luker appeals the trial court's order in a suit to modify the parent-child relationship. On appeal, Randall contends that the trial court abused its discretion in awarding attorney's fees against him because there is no evidence that the attorney's fees were reasonable. We reverse and remand.
BACKGROUND
Randall and Renee Luker were divorced on July 10, 2009, and are the parents of three children. On August 24, 2009, Randall filed a petition to modify the parent-child relationship, stating that the circumstances of the children, a conservator, or other party affected by the order to be modified have materially and substantially changed since the final decree of divorce. Renee filed an original answer and requested reasonable attorney's fees. After Renee filed a motion to transfer the suit to Smith County, the principal residence of the children for the preceding six months, the district court of Orange County transferred the suit to the district court in Smith County.
After the suit was transferred to Smith County, Randall filed three amended petitions to modify and a motion for the judge to confer with all the children. Renee filed an original and amended counterpetition to modify, requesting attorney's fees in both petitions. On October 1, 2010, the trial court heard Randall's motion to modify. At the conclusion of the hearing, Randall's attorney and Renee's attorney testified as follows concerning their attorney's fees:
RANDALL'S ATTORNEY: Call myself as a witness Your Honor.
THE COURT: How much?
RANDALL'S ATTORNEY: Twenty thousand.
THE COURT: Okay. You rest?
RANDALL'S ATTORNEY: I rest.
RENEE'S ATTORNEY: I only need to put her on to introduce some pictures and attorney's fees. I can tell you attorney's fees -
THE COURT: How much?
RENEE'S ATTORNEY: I'm sorry.
. . . .
RENEE'S ATTORNEY: $42,525.00
THE COURT: $42,525.00, okay. Anything else?
On February 22, 2011, the trial court signed an order, appointing Randall and Renee joint managing conservators of the children. The trial court granted Renee the exclusive right to designate the primary residence of the children within Smith County. Each parent was granted possession of the children every other weekend, and two days each week. Further, the trial court granted Renee's attorney a judgment against Randall for attorney's fees, expenses, and costs in the amount of $32,000, along with six percent interest from and after the date of entry of the order. The trial court also awarded the fees as costs pursuant to Rule 143 of the Texas Rules of Civil Procedure.
Randall filed a motion for new trial, which was denied. He also filed a request for findings of fact and conclusions of law, and a notice of past due findings of fact and conclusions of law. The trial court complied with Randall's request. In its findings of fact and conclusions of law, the trial court found that Renee incurred reasonable and necessary attorney's fees defending the motions to modify filed by Randall. The trial court also found that these fees were incurred in the best interest of the children. This appeal followed.
ATTORNEY'S FEES
In his sole issue on appeal, Randall argues that the trial court abused its discretion by awarding Renee's attorney's fees against him because there is no evidence that the attorney's fees were reasonable. Standard of Review
The grant or denial of attorney's fees is within the sound discretion of the trial court. In re C.Z.B., 151 S.W.3d 627, 634 (Tex. App.—San Antonio 2004, no pet.) (citing Oake v. Collin Cnty., 692 S.W.2d 454, 455 (Tex. 1985)). Under an abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent issues, but are relevant facts in assessing whether the trial court abused its discretion. In re Ferguson, 927 S.W.2d 766, 769 (Tex. App.-Texarkana 1996, no writ). To determine whether the trial court abused its discretion because the evidence is legally or factually insufficient, we engage in a two-pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its discretion; and (2) Did the trial court err in its application of discretion? In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied) (op. on reh'g). The traditional sufficiency review comes into play with regard to the first question. Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.—El Paso 1998, no pet.). We then determine whether, based on the elicited evidence, the trial court made a reasonable decision—one that was neither arbitrary nor unreasonable. Id In the absence of such a clear abuse of discretion, an appellate court should not substitute its judgment for that of the trial court. In re Ferguson, 927 S.W.2d at 769. Applicable Law
The general rule is that a party cannot recover attorney's fees from an adverse party unless permitted by a statute or rule of procedure, by a contract between the parties, or under equity. Bailey v. Rodriguez, 351 S.W.3d 424, 426-27 (Tex. App.—El Paso 2011, no pet.) (citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006)). In a suit under the Texas Family Code, a court may render judgment for reasonable attorney's fees and expenses and order the judgment and postjudgment interest to be paid directly to an attorney. See TEX. FAM. CODE ANN. § 106.002(a) (West 2008).
As a prerequisite to the recovery of attorney's fees for any underlying cause of action, the party seeking fees must prove the reasonableness of the fees. Bailey, 351 S.W.3d at 427; Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Reasonableness of fees must be supported by competent evidence. Bailey, 351 S.W.3d at 427; Peeples v. Peeples, 562 S.W.2d 503, 506 (Tex. Civ. App.—San Antonio 1978, no writ). Factors considered by the court when determining the amount of reasonable fees include (1) the time and labor required, novelty and difficulty of the question presented, and the skill required; (2) the likelihood that acceptance of employment precluded other employment; (3) the fee customarily charged for similar services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer performing the services; and (8) whether the fee is fixed or contingent. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997); Bailey, 351 S.W.3d at 427-28. The court need not receive evidence on each of these factors, but may look at the entire record, the evidence presented on reasonableness, the common knowledge of the participants as lawyers and judges, and the relative success of the parties. In re A.B.P., 291 S.W.3d 91, 98 (Tex. App.—Dallas 2009, no pet.). Analysis
Here, we must ask if the trial court had sufficient information upon which to exercise its discretion in determining the award of attorney's fees. See In re T.D.C., 91 S.W.3d at 872. Renee's attorney did not testify, nor did he present an affidavit, itemized statements, exhibits, or any other offer of proof, about the reasonableness of his fees. The record is devoid of evidence relating to his experience, the time and labor involved, the difficulty of the task, his hourly rates, the rates customarily charged for similar services, or his fee agreement with Renee. See Arthur Andersen, 945 S.W.2d at 818; Bailey, 351 S.W.3d at 427-28. While a party need not offer proof of all the Andersen factors, Renee's attorney did not offer proof of any of them. We have only his request for fees of $42,525.00.
However, Renee argues that her attorney's testimony is some evidence of the reasonableness of her attorney's fees. As support, she calls our attention to In re A.P.B., 291 S.W.3d 91 (Tex. App.—Dallas 2009, no pet.), and Garcia v. Gomez, 319 S.W.3d 638 (Tex. 2010). In A.P.B., the appellate court stated that testimony from a party's attorney about fees is taken as true as a matter of law if the testimony "is not contradicted by any other witness and is clear, positive, direct, and free from contradiction." Id.at 98 (quoting Blockbuster, Inc. v. C-Span Entm't, Inc., 276 S.W.3d 482, 490 (Tex. App.—Dallas 2008, pet. granted, judgm't vacated w.r.m.)). In that case, the mother's attorney testified regarding her experience in family law, the necessity of the mother's hiring her to defend the suit, her hourly rate, the total amount due as of the start of trial, the amount due at the end of trial, and the reasonableness and necessity of her fees. Id. at 99. The appellate court found the attorney's testimony sufficient, specifically finding that father did not submit any controverting evidence or challenge the mother's request for attorney's fees or supporting evidence. Id.
In Garcia, the appellant's attorney testified about his experience in medical malpractice litigation, estimated his reasonable and necessary fees for representation through dismissal, and testified regarding his fees in the event of an appeal and the reasonableness of those fees. Garcia, 319 S.W.3d at 641. According to the supreme court, "[w]hile the attorney's testimony lacked specifics, it was not, under these circumstances, merely conclusory[; i]t was some evidence of what a reasonable attorney's fee might be in this case." Id.
Unlike the attorneys' testimony in Garcia and A.P.B., Renee's attorney's testimony is not some evidence of a reasonable attorney's fees. His testimony was completely devoid of specifics, and thus, was merely conclusory. See Garcia, 319 S.W.3d at 641; A.P.B., 291 S.W.3d at 98. Renee does not cite to any case in which an attorney's testimony was found to be sufficient where the attorney testified to only the amount of attorney's fees. Because there is no evidence to support the reasonableness of Renee's attorney's fees, the trial court abused its discretion in awarding attorney's fees to her attorney. See Arthur Andersen, 945 S.W.2d at 818; Bailey, 351 S.W.3d at 427-28; Vazquez v. Vazquez, 292 S.W.3d 80, 86 (Tex. App.—Houston [14 Dist.] 2007, no pet.). Therefore, we sustain Randall's sole issue.
CONCLUSION
When reversing a trial court's judgment, an appellate court must render the judgment that the trial court should have rendered, except when the interests of justice require a remand for another trial. See TEX. R. APP. P. 43.3. In other words, we have broad discretion to remand the issue of attorney's fees in the interests of justice. See Powell Elec. Systems, Inc. v. Hewlett Packard Co., 356 S.W.3d 113, 129 n.9 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Pena v. Smith, 321 S.W.3d 755, 759 (Tex. App.—Fort Worth 2010, no pet.). Based on the record before us, we conclude that remanding in the interests of justice is appropriate here. See Pena, 321 S.W.3d at 759. Moreover, because Randall requested only a new trial on attorney's fees, a new trial is the only relief to which he is entitled. See Horrocks v. Tex. Dep't of Transp., 852 S.W.2d 498, 499 (Tex. 1993). Accordingly, we reverse that portion of the trial court's order awarding attorney's fees to Renee's attorney, and remand this cause for a new trial on attorney's fees.
JAMES T. WORTHEN
Chief Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.