Opinion
04-21-00470-CV
08-24-2022
Lakshmana VISWANATH, Appellant v. CITY OF LAREDO, Appellee
From the 49th Judicial District Court, Webb County, Texas Trial Court No. 2019-CVK-001492 Honorable Joe Lopez, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice
This appeal challenges an award of attorney fees to the City of Laredo. After considering the parties' arguments and the record, we reform the trial court's order as to the amount of the attorney fee award and affirm as reformed.
Background of the Appeal
This appeal is the second appeal of this case. In the first appeal, appellant Lakshmana Viswanath challenged the City of Laredo Ethics Commission's finding that he filed a frivolous ethics complaint and the imposition of an attorney-fee sanction. Initially, Viswanath appealed the Ethics Commission's finding and the attorney-fee sanction to the trial court. In the trial court, the parties moved for summary judgment. The trial court granted the City of Laredo's motion on both issues. Viswanath appealed the summary judgment to this court.
This court affirmed the trial court's summary judgment about the finding of a frivolous complaint but reversed the judgment as to attorney fees. Viswanath v. City of Laredo, No. 04-20-00152-CV, 2021 WL 1393976, at *5 (Tex. App.-San Antonio Apr. 14, 2021, no pet.). This court determined the evidence did not conclusively establish that substantial evidence supported the award of $7,900.68 in attorney fees and remanded the case to the trial court to determine whether substantial evidence was presented to support the award.
On remand, the parties moved for summary judgment on that issue. The trial court granted the City's motion and awarded the City $7,900.68 in attorney fees. In this appeal, Viswanath maintains substantial evidence does not support the award.
Standard of Review
We review a summary judgment de novo, applying the same legal principles that applied in the trial court. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Here, the City of Laredo Code of Ethics (the "Code") directs the trial court to review an Ethics Commission disposition for substantial evidence. Laredo, Tex., Code of Ethics, div. 8, § 8.08 (2019).
"When applying the substantial evidence rule, a reviewing court looks only at the record made before the administrative body and determines if its findings are reasonably supported by substantial evidence." In re Edwards Aquifer Auth., 217 S.W.3d 581, 586 (Tex. App.-San Antonio 2006, no pet.). Substantial evidence exists if more than a scintilla of evidence supports a conclusion, R.R. Comm'n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995), and if a reasonable mind might accept the evidence as adequate to support the conclusion, see Granek v. Tex. St. Bd. of Med. Exam'rs, 172 S.W.3d 761, 778 (Tex. App.-Austin 2005, no pet.); Lauderdale v. Tex. Dep't of Agric., 923 S.W.2d 834, 836 (Tex. App.-Austin 1996, no writ).
Whether Substantial Evidence Supports the Attorney Fee Award
Viswanath contends no evidence was presented during his hearing to support an attorney fee award of $7,900.68. Viswanath's argument focuses on the time of the hearing. In response, the City contends that it was impossible to present evidence during the hearing because, according to the Code, only the complainant can testify. Laredo, Tex., Code of Ethics, div. 8, § 8.07(e) (2019). No question exists about whether the Ethics Commission received evidence to support an award of $7,900.68 during the hearing. The Code does not require evidence during the hearing to uphold the award. Instead, the Code directs a reviewing court to review the record of the hearing before the Ethics Commission. Logically, the record of the hearing might include evidence to support an award of attorney fees because the Ethics Commission's attorney cannot invoice his services until after the hearing and after completing legal services. It follows that once the attorney completes legal services and submits invoices, that evidence can then become part of the record. Nevertheless, we need not decide whether the Commission needed evidence during the hearing because the summary-judgment evidence does not show the evidence was made part of the record before the Commission.
The Code gives the Ethics Commission discretion to permit statements by the complainant's attorney or testimony by complainant witnesses.
In its motion for summary judgment, the City relied, in part, on an affidavit from its attorney. Therein, the attorney attested to his credentials for serving as the Commission's attorney, the details of his contract for legal services, and the time spent on Viswanath's complaint. The attorney attached two invoices - dated June 17, 2019 and July 22, 2019 - detailing legal services that occurred from May 14, 2019, to July 12, 2019. Because Viswanath's hearing occurred on July 10, 2019, the invoice dates suggest the attorney completed his work on Viswanath's complaint at the conclusion of the hearing and immediately invoiced the City. Importantly, that evidence does not show the invoices became part of the record of the hearing before the Ethics Commission.
The City also presented a letter from the Chair of the Ethics Commission, notifying Viswanath about the Commission's finding, a $500 fine, and the requirement to pay the Ethics Commission's attorney fees. The letter does not mention the amount of attorney fees, but instead states, "A notice for the legal fees you have been ordered to pay to the Law Offices of Ryan Henry will be mailed to you in a separate document and will be due thirty (30) days from the date of that notice." Like the attorney invoices, the letter does not show the invoices became part of the record of the hearing before the Ethics Commission. Conceivably, the attorney or a City employee may have sent the invoices directly to Viswanath, without a member of the Commission ever seeing them.
As the record stands, to uphold the award of $7,900.68, this court must assume the invoices became part of the record of the hearing before the Ethics Commission. Assumptions do not constitute evidence. The only evidence of the amount of attorney fees at the hearing before the Ethics Commission is the attorney's estimate at the hearing that he had expended $4,500 in legal services to date. The attorney's estimate constitutes more than a scintilla of evidence. A reasonable mind might accept the attorney estimate as adequate to support a $4,500 award, but not a $7,900.68 award. Because a reasonable mind would not accept the estimate as adequate to support an award of $7,900.68, substantial evidence does not support the award.
Accord Hous. Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 833 (Tex. 2014) ("[I]f the record contains no evidence supporting an expert's material factual assumptions, or if such assumptions are contrary to conclusively proven facts, opinion testimony founded on those assumptions is not competent evidence."); Sage St. Assocs. v. Northdale Const. Co., 863 S.W.2d 438, 449 (Tex. 1993) ("An expert's assumption is not evidence of the parties' intent.") (Hecht, J., dissenting); In re D.J.W., 394 S.W.3d 210, 226 (Tex. App.-Houston [1st Dist.] 2012, pet. denied) ("If stacked inferences do not constitute evidence, stacked assumptions cannot constitute evidence.").
The attorney stated:
If you find the complaint to be frivolous, your options to impose a form of penalty would include a civil penalty not to exceed $500, payment of attorney's fees associated with filing a frivolous complaint - which would be mine, and now I'd need to get an accurate number, but roughly about $4500. Or three, what the code says is any other penalty that you're authorized by law to impose.(Emphasis added.)
Conclusion
Because the only summary-judgment evidence of the amount of attorney fees was an estimate of $4,500, the trial court should have granted the City's motion in part and awarded the City $4,500 in attorney fees. The City implicitly acknowledged as much by requesting, in the alternative, that we render a decision amending the trial court's order to reduce the award to $4,500. Because this court has authority to reform a judgment of attorney fees and because of the City's alternative request on appeal, we reform the judgment to award $4,500 in attorney fees and affirm the judgment as reformed.
See Apache Corp. v. Davis, 573 S.W.3d 475, 504-05 (Tex. App.-Houston [14th Dist.] 2019), rev'd on other grounds, 627 S.W.3d 324 (Tex. 2021) (modifying trial court judgment to reduce amount of attorney fee award); Roman v. Ramirez, 573 S.W.3d 341, 351 (Tex. App.-El Paso 2019, pet. denied) (modifying judgment as to attorney fee amount to amounts proven in affidavit with appellee's consent); Oakwood Mobile Homes, Inc. v. Cabler, 73 S.W.3d 363, 376 (Tex. App.-El Paso 2002, pet. denied) (reforming trial court judgment to omit money awarded for expert witness fees).