Coward v. Gateway National Bank of Beaumont , 515 S.W.2d 129 ( 1974 )

STEPHENSON, Justice.

This is an appeal from an order of the trial court granting plaintiff’s motion for summary judgment. The only point of error complains of such action because such judgment included an attorney’s fee about which it is claimed that there is a genuine issue of fact.

Plaintiff, Gateway National Bank, filed suit against Claude C. Coward and Daniel Dan Spell, as partners, and doing business as Chrysler Marine of Beaumont, on four promissory notes. Copies of the notes were attached to the petition, and plaintiff’s attorney swore they were true copies of the originals. An amended petition was filed alleging that the notes provided for reasonable attorney’s fees and praying for a fee of $2,000.00. The copies of the notes and an affidavit were attached in which the attorney also swore that plaintiff was the present owner and holder of the notes. Plaintiff then filed its motion for summary judgment together with an affidavit in which it is stated that $2,000.00 is a reasonable attorney’s fee in this case. Such motion was granted and judgment rendered that plaintiff have judgment against defendants in the total sum of $11,760.75 and attorney’s fee of $2,000.00. The parties will be referred to here as they were in the trial court.

Article 2226, Vernon’s Ann.Civ.St., as amended in 1971, now provides the following, in part:

“The amount prescribed in the current State Bar Minimum Fee Schedule shall be prima facie evidence of reasonable attorney’s fees. The court, in non jury cases, may take judicial knowledge of such schedule and of the contents of the case file in determining the amount of attorney’s fees without the necessity of hearing further evidence.”

We follow Superior Stationers Corp. v. Berol Corporation, 483 S.W.2d 857, 859 (Tex.Civ.App., Houston—1st Dist., 1972, no writ), in holding that the record in the case before us supports the awarding of an attorney’s fee. Under Article 2226, V.A.C.S., the current State Bar Minimum Fee Schedule, is prima facie evidence of the reasonableness of attorney’s fees, and in the absence of opposing evi-dentiary data the trial court was authorized to allow a reasonable attorney’s fee. Defendant did not place in issue the question of the reasonableness of the attorney’s fees. See Fisher v. Howard, 389 S.W.2d 482, 488 (Tex.Civ.App., Dallas, 1965, no writ), invoking the rule set out in Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, 951 (1960), that if the maker of the note expected to defeat the motion for summary judgment by showing an issue of fact on the question of reasonableness of attorney’s fees, it was incumbent upon him to come forward with evidence sufficient to raise that question.

The Minimum Fee Schedule of the State Bar of Texas, of April 1968, shows the contingent fee to be 331/$ percent, and non-contingent fee to be 16⅜ percent, each as a minimum. Our record is silent as to whether the fee in our case is contingent or non-contingent; therefore, we apply the lesser percentage of the two. The recovery in this case is $39.88 in excess of such minimum fee.

If within ten days plaintiff will remit the sum of $39.88, the judgment will be reformed and affirmed; otherwise, it will be reversed and remanded.

The judgment is affirmed, conditionally.