law-attorney-fees
Award of Attorney's fees in SJ reversed - Defendant filed controverting affidavit challenging
reasonableness
Hinojosa v. Citibank (South Dakota), N.A., No. 05-07-00059-CV, 2008 WL 570601 (Tex.App.-Dallas, March 4,
2008, no pet. h.) (mem. op.);
(Court of Appeals concludes the trial court properly granted a traditional summary judgment on Citibank's breach
of contract claim) (and did not reach Citibank's other causes of action)(controverting fee affidavit by defendant's
attorney created a fact issue regarding the reasonableness of attorney's fees awarded for Spencer's trial work,
which precluded summary judgment)
Citibank's attorney, Jennifer J. Spencer, filed an affidavit seeking reimbursement of $11,831.00 in reasonable
fees, which included eighty-eight hours spent litigating the case. The trial court awarded $11,831.00, plus $5,000
for any unsuccessful post-judgment motions, $5,000 for an unsuccessful appeal to the court of appeals, and
$5,000 for an unsuccessful petition for review to the Supreme Court of Texas. Hinojosa contends he created a fact
issue when his attorney, Jerry J. Jarzombek, filed a controverting affidavit. We agree.
Generally, a trial court does not abuse its discretion when an attorney testifies the fees incurred were reasonable
and necessary and summarizes the hours worked and rate charged. Hachar v. Hachar, 153 S.W.3d 138, 143
(Tex. App.-San Antonio 2004, no pet.). However, the award of such fees is improper unless the evidence of the
reasonableness of those fees is uncontroverted. Guity v. C.C.I. Enter., Co., 54 S.W.3d 526, 528 (Tex.
App.-Houston [1st Dist.] 2001, no pet.). An affidavit filed by non-movant's counsel that simply criticizes the fees
sought by the movant as unreasonable without setting forth the affiant's qualifications or the basis for his opinion
will not be sufficient to defeat summary judgment. Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373
(Tex. App.-San Antonio 1999, pet. denied). That is not the case here, given that Hinojosa's attorney filed an
affidavit setting forth his qualifications and why Citibank's trial fees are unreasonable. Thus, his affidavit created a
fact issue regarding the reasonableness of attorney's fees awarded for Spencer's trial work, which precluded
summary judgment. However, he failed to create a fact issue as to the reasonableness of appellate fees awarded;
therefore, the trial court properly awarded these fees. As such, we reverse and remand to the trial court for further
proceedings the reasonableness of attorney's trial fees. See Guity, 54 S.W.3d at 529.
.............................................................
Attorney's Fees: Summary Judgment on Attorney's Fees
As noted, Wynne filed a response to Citibank's initial motion for summary judgment, controverting the
reasonableness and necessity of its claimed $7883.54 in attorney's fees. Citibank later filed an affidavit of Allen
Adkins, its attorney, dated June 1, 2005, and stating reasonable attorney's fees in the case totaled $915. It then
filed a motion for summary judgment on attorney's fees, giving notice of hearing on the motion for December 15,
2005. Wynne filed a response to the motion, pointing out Adkins's affidavit conditioned its assertion of the truth of
its statements on "the best of [affiant's] knowledge and belief." (7) Wynne's response asserted such an affidavit is
no evidence, and asked that Citibank's motion be denied. On the day of the hearing, December 15, Citibank filed
an amended affidavit, the contents of which are substantively identical to the June affidavit but omitted the "best of
knowledge and belief" statement.
Wynne v. Citibank South Dakota N.A. (Tex.App.- Amarillo, Apr. 25, 2008)(Campbell)
Wynne contends on appeal the trial court erred by granting Citibank summary judgment for $915 in attorney's
fees. We will overrule the contention.
Wynne is correct that Adkins's June 1 affidavit was defective. The defect, however, was one of form, not
substance. As Wynne's objection at trial and her brief on appeal point out, the defect caused by the improper
inclusion of the "best of knowledge and belief" statement in the June 1 affidavit closely resembles that in
International Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805, 808 (Tex.App.-Fort Worth 1994, writ denied), in which
the court found defective an affidavit by counsel based on best knowledge. But the court also found that the right
to complain of the defect on appeal was subject to waiver. Id. Wynne filed an objection in the trial court to Adkins's
June 1 affidavit, but the record does not reflect a ruling on the objection. Cf. Martinez v. IBP, Inc., 961 S.W.2d 678,
685 (Tex.App.-Amarillo 1998, pet. denied) (trial court overruled objection to summary judgment affidavit).
Accordingly, no objection to the trial court's reliance on Adkins's June 1 affidavit may be asserted now. (8)
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993); Youngblood v. U.S. Silica Co., 130
S.W.3d 461, 468-69 (Tex.App.-Texarkana 2004, pet. denied). The trial court did not err by granting summary
judgment on attorney's fees.
Concluding the trial court did not err by its grant of summary judgment, we overrule Wynne's issue and affirm the
judgment.
James T. Campbell Wynne v. Citibank South Dakota N.A. (Tex.App.- Amarillo, Apr. 25, 2008)(Campbell)
Amount of Attorney's Fees in SJ presents Fact Issue - Reversed and Remanded
Appellant also complains that it was error for the trial court to award any attorney's fees to Appellee. The
fundamental rule is that a party cannot recover attorney's fees from an opposing party unless the recovery is
permitted by statute or by agreement between the parties. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex.
1999). Although Admission 21 ("At least [sic] should be awarded to [Appellee] as attorney's fees in this suit") is an
incomplete statement proving nothing, Appellee did request reasonable attorney's fees "pursuant to the terms of
the agreement and the provisions of Chapter 38" of the civil practice and remedies code. See Tex. Civ. Prac. &
Rem. Code Ann. ' 38.001 (Vernon 1997). To be entitled to attorney's fees, Appellee had to prevail on its summary
judgment claim. See Grace v. Duke, 54 S.W.3d 338, 344 (Tex. App.- Austin 2001, pet. denied). Appellee did
establish by admission that Appellant breached a contract and owed damages, but the fact questions presented
with regard to the actual amount of damages preclude Appellee from prevailing on its claim on summary judgment
and thus being entitled, at this time, to attorney's fees. See Grace, 54 S.W.3d at 344.
Luke v. Unifund (Tex.App.- Fort Worth, Aug. 31, 2007)
(summary judgment for plaintiff in credit card debt suit by assignee of original creditor reversed) (contradictory
deemed admissions, defective affidavits, lack of personal knowledge, conclusory affidavit, documents not attached,
affidavits by Kim Kenney and Freckman; damages not proven, fact issue; attorney's fee award also reversed)
REVERSED AND REMANDED: Opinion by Justice Holman
Before Chief Justice Cayce, Justices Holman and McCoy
02-06-00444-CV Deni L. Luke v. Unifund CCR Partners
Appeal from County Court at Law No. 2 of Denton
Presentment Requirement - Condition Precedent
Also in his fourth issue, Williams argues that Unifund was not entitled to attorney's fees because it did not present
the account to him for payment at least 30 days prior to filing suit. See Tex. Civ. Prac. & Rem. Code Ann. § 38.002
(Vernon 1997) (providing that "payment for the just amount owed must not have been tendered before the
expiration of the 30th day after the claim is presented"); see also id. § 38.001(8) (allowing party who prevails on
breach of contract claim to recover reasonable attorney's fees).