law-attorneys-fees-by-summary-judgment

law-attorneys-fees-by-summary-judgment | attorney's fees | reasonableness of attorneys fees | fee factors

Proof of attorney’s fees

Next, we consider whether the Association’s evidence supports the attorney’s fees award. As a general rule,
the party seeking to recover attorney’s fees carries the burden of proof. Stewart Title Guar. Co. v. Sterling,
822 S.W.2d 1, 10 (Tex. 1991). Chapter 38 of the Texas Civil Practice and Remedies Code, which the
Association invoked here, affords the party seeking fees the presumption that the usual and customary fees
for the eligible claim are reasonable. TEX. CIV. PRAC. & REM. CODE ANN.
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§§ 38.001, 38.003 (Vernon 2008). This presumption, however, is subject to rebuttal, and McGlown has
challenged the reasonableness of the Association’s fee demand. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 38.003. In reviewing the reasonableness of an attorney’s fees award, the court considers:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to
perform the legal service properly;
(2) the likelihood that the acceptance of the particular employment will preclude other employment by the
lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal
services have been rendered.
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (citing TEX. DISCIPLINARY
R. PROF’L CONDUCT 1.04). The amount of attorney’s fees sought also must bear some reasonable
relationship to the
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amount in controversy. USAA County Mut. Ins. Co. v. Cook, 241 S.W.3d 93, 103 (Tex. App.—Houston [1st
Dist.] 2007, no pet.). Although proof of the number of hours and corresponding hourly rate are not
necessarily required, the trial court generally relies on evidence of hours expended and the attorney’s
stated hourly rate to determine whether the requested fee is reasonable for the nature and extent of the
services performed. McGee v. Deere & Co., No. 03-04-00222-CV, 2005 WL 670505, *4 (Tex. App.—Austin
Mar. 24, 2005, pet. denied) (mem. op.) (citing Collins v. Guinn, 102 S.W.3d 825, 836 (Tex. App.—Texarkana
2003, pet. denied)).
In this case, the Association’s own attorney executed the attorney’s fees affidavit in support of its summary
judgment motion. Uncontroverted testimony of an interested witness will establish attorney’s fees sought are
reasonable and necessary as a matter of law if (1) the testimony could readily be contradicted if untrue; (2)
the testimony is clear, direct, and positive; and (3) there are no circumstances tending to discredit or
impeach the testimony. Rosenblatt v. Freedom Life Ins. Co. of Am., 240 S.W.3d 315, 321 (Tex. App.—
Houston [1st Dist.] 2007, no pet.) (citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882
(Tex. 1990)).
The Association’s attorney describes his professional experience and itemizes activities he identifies as “the
services that are necessary to handle a
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collection matter which is similar in nature to the above-entitled and numbered cause.” The attorney avers
that “the total amount of attorney’s fees and expenses incurred by Ashford Park Homeowners Association,
Inc. in the prosecution of this lawsuit is $7,620.00,” and, after reciting the reasonableness factors, opines
that such sum “is a reasonable attorney’s fee and is in accordance with the attorney’s fees normally and
customarily charged in litigation of the type now before the Court.”
This affidavit does not satisfy the Association’s summary judgment burden. First, the affidavit does not
identify the services actually performed on behalf of the Association in this lawsuit, itemize the hours
expended, or identify the attorney’s hourly rate. The absence of these objective criteria prevents the
affidavit from being readily controvertible.
Second, controverting evidence before the trial court bars summary judgment on the Association’s attorney’
s fees claim. In his response, McGlown challenged the reasonableness of the Association’s fee request with
evidence that (1) he tendered a $457.20 check for payment of his dues, plus late charges, before he was
served with any documents from an attorney, including the Association’s demand letter, (2) the Association
delayed in opening the mail containing the tendered check for several days, and (3) after an additional
delay, the Association returned the check and
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demanded the sum of $3,646.90.
The trial court’s judgment awards only $5,000.00 in fees, less than the amount sought by the Association. It
reflects that the trial court was duly concerned about the issue, but the court was not authorized to make a
fact finding at this stage. See Guity v. C.C.I. Enter. Co., 54 S.W.3d 526, 528 (Tex. App.—Houston [1st Dist.]
2001, no pet.). (holding that, when summary judgment record contains evidence contesting reasonableness
of the attorney’s fees requested, trial court may not resolve issue on summary judgment); see also
Rosenblatt, 240 S.W.3d at 321. Accordingly, we reverse the trial court’s summary judgment on the attorney’s
fee award.
The trial court’s judgment awards only $5,000.00 in fees, less than the amount sought by the Association. It
reflects that the trial court was duly concerned about the issue, but the court was not authorized to make a
fact finding at this stage. See Guity v. C.C.I. Enter. Co., 54 S.W.3d 526, 528 (Tex. App.—Houston [1st Dist.]
2001, no pet.). (holding that, when summary judgment record contains evidence contesting
reasonableness of the attorney’s fees requested, trial court may not resolve issue on summary
judgment); see also Rosenblatt, 240 S.W.3d at 321. Accordingly, we reverse the trial court’s summary
judgment on the attorney’s fee award.
McGlown v. Ashford Park (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(summary judgment for home owner's
association reversed; failure to prove case and attorney's fees, attorney fee award in summary judgment
proceeding not proper if amount disputed)
REVERSE TC JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS:
Before Justices Taft, Bland and Sharp
01-08-00619-CV Willie McGlown Jr. v. Ashford Park, et al.
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Jacqueline Lucci Smith

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