James O. Ainsworth, Jr v. Cach, LLC ( 2012 )

Affirmed and Memorandum Opinion filed April 10, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00502-CV
JAMES O. AINSWORTH, JR., Appellant
V.
CACH, LLC, Appellee
On Appeal from the County Court at Law No. 1
Fort Bend County, Texas
Trial Court Cause No. 09-CCV-040548
MEMORANDUM OPINION
In this credit card collection case, appellant James O. Ainsworth, Jr. challenges a
judgment in favor of appellee CACH, LLC. Ainsworth contends that (a) the trial court
erroneously admitted a business-records affidavit, (b) CACH lacked standing to sue,
(c) the trial court abused its discretion by permitting Ainsworth to testify regarding
documents not in evidence, (d) attorney’s fees were not proven by CACH, (e) the
evidence is legally insufficient to support the verdict, and (f) the trial court erred by
denying Ainsworth’s counterclaims. We affirm.
BACKGROUND
In October 2009, CACH sued Ainsworth to recover a credit card debt attributed to
Ainsworth. CACH had acquired the debt from Chase Bank USA, N.A. In September
2010, Ainsworth answered with a sworn denial, stating that CACH’s claims were not
true, that he did not owe the amount CACH claimed he owed, and that he had never
applied for, received, used, or authorized anyone to use the credit card at issue. He also
asserted the affirmative defenses of statute of limitations, fraud, statute of frauds,
payment, estoppel, failure of consideration, and usury. He further challenged CACH’s
standing to sue and averred that he had not received a pre-suit demand. Finally, he
counterclaimed under the DTPA, the Fair Debt Collection Practices Act, and the Texas
Finance Code.
During discovery, CACH sought copies of Ainsworth’s personal Wells Fargo
bank account statements for the period from April 1, 2007 through April 30, 2008 (the
“Wells Fargo statements”). After being sanctioned for failing to produce these
documents, Ainsworth produced them to CACH.
At the bench trial conducted on March 22, 2011, Ainsworth challenged CACH’s
standing to pursue collection of this account. In response, CACH asserted that it had
standing as an assignee of the original holder of the account. The trial court admitted,
over a variety of Ainsworth’s objections, a business-records affidavit signed by CACH
employee Maria Hwang on November 9, 2010, with several attachments incorporated
therein (the “business-records affidavit”). In this affidavit, Hwang states:
1. I am the Authorized Agent and custodian of the records of Plaintiff
and am familiar with the Plaintiff’s business processes. Business
records are kept and maintained in the ordinary course of Plaintiff's
business (“Records”) concerning accounts like the account of the
Defendant. The Records are made and maintained by individuals
who have a business duty to make entries in the Records accurately
at or near the time of the event that they record, or reasonably soon
thereafter, by or from information transmitted by someone with
personal knowledge of the event or act.
2
2. In addition, it is Plaintiff’s regular business practice to obtain,
integrate, and rely upon documents prepared by the original creditor
of the account at issue. In this particular action, Plaintiff has
obtained and integrated documents received from the original
creditor, CHASE BANK USA, N.A. successor in interest to
WASH1NGTON MUTUAL/PROVIDIAN BANK. Plaintiff relies
upon the accuracy of such documentation in its day to day business
activities and such documents are considered Records of the
Plaintiff. The records consist of both hard copy information and
electronic information that is generated, stored and maintained by
the original creditor in accordance with generally accepted standards
in the retail and financial industries by individuals that possess the
knowledge and training necessary to ensure the accuracy and
reliability of the records. I know from my experience in reviewing
such records that those records are made and maintained by
individuals who have a business duty to make entries in the records
accurately at or near the time of the event that they record. Plaintiff
relies upon the accuracy and reliability of said records in its day to
day business.
Exhibit A to this affidavit is a “Bill of Sale” from Chase to CACH, purporting to
sell “all rights, title and interest” to certain receivables “described in Exhibit 1 attached
hereto and made part hereof for all purposes.” In turn, attached to this Bill of Sale is a
largely redacted spreadsheet, with a heading stating “Chase Bank USA to CACH, LLC.”
The spreadsheet contains the following information:
Placement Creditor
Account Number Debtor Name SSN Client Acct No DOB Original Creditor Placement C/O Date
Date Last Pay
XXX-
AINSWORTH, WAMU/PROVIDIAN
15185179971295969 XX- 4559962400404685 2/3/1952 12/18/2008 4567.07 4/3/2008 11/28/2008
JR, JAMES O BANK
9743
Another affidavit by Hwang, dated August 6, 2009, is attached to the business-
records affidavit. In this affidavit, Hwang states:
1. I am an authorized agent for and a custodian of the records of
CACH, LLC.
2. As authorized agent and custodian of the business records for
Plaintiff, I have personal knowledge based upon the review of the
documentation provided by the original creditor (attached hereto)
that, after all just and lawful offsets, payments, and credits have been
3
allowed, the total balance on the account of $4,567.07 is just and
true and is due and owing from Defendant to Plaintiff.
3. The total amount of $4,567.07 is based on the amount due at the
time of placement of the account with plaintiff of $4,567.07 and post
placement interest of $0 which accrues at an interest rate of 0%
based on the documentation provided by the original creditor and
attached hereto.
4. The records attached hereto are the original or exact duplicates of the
original.
5. Demand for payment of the just amount owing Plaintiff by
Defendant was made upon the Defendant more than thirty (30) days
prior to filing of plaintiff’s original petition, and payment for the just
amount owing has not been tendered.
Also attached to the business-records affidavit is an “Affidavit of Sale” signed by
Wendy Baldwin of Chase, in which she states:
I am authorized on behalf of Chase Bank USA, N .A. (“Chase”) to make
this affidavit.
JP Morgan Chase & Co. (“JP Morgan”) purchased certain credit card
receivables originated by Washington Mutual Bank through the FDIC,
which receivables were assigned to Chase.
JAMES O AINSWORTH JR had credit card account number
4559962400404685 with Washington Mutual Bank, and that Account was
one of the receivables transferred to Chase as described in paragraph 2.
Chase sold the Account to CACH, LLC. on or about 12/22/2008. At the
time of the sale to CACH, LLC., the amount due on the account pursuant to
the terms of the applicable cardholder agreement by JAMES O
AINSWORTH JR was $4,567.07.
Your deponent states that to the best of deponent’s knowledge, information
and belief that there was no unaccredited payment, just counterclaims or
offsets against the account when it was sold.
Chase has no further interest in said account for any purpose.
Several copies of statements from Washington Mutual Card Services reflecting Providian
account number 4559-9624-0040-4685 and addressed to James O. Ainsworth Jr., 1613
Frost St., Rosenberg, TX 77471-4214 are also attached to the business-records affidavit.
The first of these statements has a closing date of February 13, 2008 and reflects a
4
balance due of $3,487.01 and a payment received of $150.00. The second statement lists
the closing date as April 15, 2008, reflects various charges made and a payment of
$150.00, and shows a closing balance of $3,607.08. The third statement shows the
closing date as November 13, 2008 and reflects a closing balance of $4,567.07. Finally,
copies of Providian Bank Visa and MasterCard account agreements are attached to the
business-records affidavit, although these copies are nearly illegible and unsigned by
Ainsworth.
After the business-records affidavit was admitted, CACH called Ainsworth, who
testified that he had never received, used or authorized the use of, or made payments on a
Washington Mutual/Providian Bank credit card. He acknowledged that the credit card
statements admitted as part of the business-records affidavit were addressed to him at his
residence. He agreed that the Wells Fargo statements shown to him by CACH’s counsel
were the statements he had produced to CACH during discovery. He further
acknowledged that the Wells Fargo bank statement dated March 6 through April 4, 2007
reflected his name, his late wife’s name, and his mailing address, and that he had seen
these statements prior to trial.
When CACH asked him to acknowledge that on March 6, 2007, “a payment to
WaMu PVN., WaMu Providian, payment on credit card” for $150.00 was shown on the
Wells Fargo statement, Ainsworth’s counsel objected that CACH was questioning
Ainsworth about documents not in evidence. The trial court overruled the objection.
Ainsworth then denied that he had made the payment reflected on his bank statement. He
did, however, agree that a payment attributed to his late wife, Gayle L. Ainsworth, was
made on the same day, which was reflected on the statement. He further acknowledged
that a direct deposit from his employer appeared on the statement.
CACH asked about another of Ainsworth’s bank statements, seeking
acknowledgment from Ainsworth that he had made a payment on April 3, 2007, to
WaMu Providian. Ainsworth’s counsel objected that CACH was asking Ainsworth again
to testify from a document not in evidence. The trial court overruled the objection, stating
5
that the document was provided to CACH’s counsel. Ainsworth’s counsel obtained a
running objection to “this document.” Ainsworth again denied making the payment
shown on his bank statement, although he agreed that the statement reflected a payment
to WaMu Providian for $125.00 made on April 3, 2007 with his name on it. He also
denied having seen or reviewed any of his bank statements from April 2007 to April
2008. He further stated that he “had no idea” that, for seven years, statements were being
sent to his house showing a debt on the credit card. He further denied having received
several collection calls from various individuals regarding this credit card debt.
On cross-examination, Ainsworth testified that his late wife, Gayle, was
responsible for paying the bills. He again denied ever applying for, receiving, or using the
credit card at issue here. He further denied speaking with anyone from CACH regarding
the credit card account. He testified that he knew nothing about this credit card debt until
he received a letter from CACH’s counsel that he needed to appear for court regarding
the debt. He stated, “Well, it was really upsetting to me because I didn’t know anything
about it. Here I am being sued for a credit card I never used or knew about.”
CACH’s counsel, Richard Clark, testified, over Ainsworth’s objection, regarding
his fees. He stated that he billed his debt-collection clients, including CACH, on a
twenty-five percent contingency basis of the amount collected. Clark explained that his
twenty-five percent contingency fee on the principal amount owed is reasonable and
necessary given the amount of work he puts into a case. When cross-examined about his
time, Clark admitted that he did not keep time records because he worked on a
contingency basis. He further acknowledged that he did not segregate his time between
CACH’s claims and the defenses and counterclaims of Ainsworth. He stated that his fee
in this case was $1,507.13.1 Ainsworth’s counsel, Betsy Grubbs, testified regarding her
hourly rates and that a reasonable and necessary fee for this case would be $5,120.00. She
also testified regarding appellate fees. The trial court took the matter under advisement.
1
This amount is greater than twenty-five percent of the principal amount owed in this debt case.
6
On May 4, 2011, the trial court signed a judgment in favor of CACH, awarding
CACH $4,567.07 in damages, $1,150.00 in attorney’s fees, five-percent post-judgment
interest, and court costs. It dismissed all of Ainsworth’s counterclaims with prejudice.
Ainsworth filed a request for findings of fact and conclusions of law, but our record does
not contain these findings. This appeal timely ensued.
The Business-Records Affidavit
Because Ainsworth’s first, second, and fifth issues relate to the trial court’s
admission of the business-records affidavit, we address these issues together. In issue
one, Ainsworth contends that the trial court abused its discretion by admitting the
business-records affidavit. Next, Ainsworth asserts that the trial court erred in concluding
that CACH had standing to pursue this claim. Finally, in issue five, Ainsworth contends
that, excluding the inadmissible evidence, there is no evidence to support the judgment.
Ordinarily, we would address the standing issue first, as it relates to the trial court’s
jurisdiction.2 But these issues all turn on the admissibility of the business-records
affidavit because it establishes CACH’s standing and provides legally sufficient evidence
to support the trial court’s verdict. Thus, we address the admissibility of this affidavit
first.
A. Admissibility of the Business-Records Affidavit
Ainsworth challenged the admission of the business-records affidavit and
supporting documentation on numerous grounds, including hearsay and that the
supporting documents were unreliable and not trustworthy. The admission and exclusion
of evidence are within the sound discretion of the trial court. Bayer Corp. v. DX
Terminals, Ltd., 214 S.W.3d 586, 609 (Tex. App.—Houston [14th Dist.] 2006, pet.
2
A party seeking affirmative relief must have standing to invoke a court’s subject matter
jurisdiction. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008). Without breach of a
legal right belonging to the plaintiff, no cause of action can accrue to its benefit. See Nobles v. Marcus,
533 S.W.2d 923, 927 (Tex. 1976). When a plaintiff lacks standing, the proper disposition is to dismiss the
lawsuit. Inman, 252 S.W.3d at 304.
7
denied) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). The
complaining party must show that the trial court erred and that such error probably
resulted in an improper judgment, which usually requires a showing that the judgment
turned on the challenged evidence. Id.; see also Tex. R. App. P. 44.1(a)(1) (requiring that
before a judgment can be reversed on appeal it must be determined that the error
probably caused rendition of an improper judgment or prevented the appellant from
properly presenting the case on appeal).
A proponent of hearsay evidence bears the burden of showing that testimony fits
within an exception to the general rule prohibiting admission of the hearsay evidence.
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n. 5 (Tex. 2004); see also Tex.
R. Evid. 802. Rule of Evidence 803(6) provides an exception to the hearsay rule for
business records if the offering party shows (1) the records were made and kept in the
regular course of business; (2) the business kept the records as part of its regular practice;
(3) the records were made at or near the time of the event they contain; and (4) the person
making the records or submitting the information had personal knowledge of the events
being recorded. See Tex. R. Evid. 803(6). Business records may also be “admissible in
evidence in any court in this state upon the affidavit of [a] person” who can satisfy the
requirements of Rule 803(6). Tex. R. Evid. 902(10)(a). Finally, third-party documents
can become the business records of an organization and, consequently, admissible under
rule 803(6), if the records are (1) incorporated and kept in the course of the testifying
witness’s business; (2) the business typically relies upon the accuracy of the contents of
the documents; and (3) the circumstances otherwise indicate the trustworthiness of the
documents. Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240–41 (Tex. App.—
Houston [1st Dist.] 2010, no pet.) (citing Bell v. State, 176 S.W.3d 90, 92 (Tex. App.—
Houston [1st Dist.] 2004, pet. ref’d)).
The business-records affidavit, described above, meets these criteria. Hwang
stated that she is the custodian of records for CACH and that it is CACH’s “regular
business practice to obtain, integrate and rely upon documents prepared by the original
8
creditor of the account at issue.” She further averred that CACH relies on the accuracy of
the documents in its day-to-day business activities and that the records are made and
maintained by individuals who have a duty to keep the record accurately at or near the
time of the event that they record. Finally, one of the documents attached to the business-
records affidavit is the “affidavit of sale,” which is notarized. Such a notarized document
is self-authenticating under the Texas Rules of Evidence. See Tex. R. Evid. 902(8). In
this document, described above, an authorized agent of Chase Bank, N.A., stated that
Chase had acquired Ainsworth’s account from Washington Mutual Bank, sold it to
CACH in December 2008, and that the amount due on the account at the time of the sale
was $4,567.07. Chase’s failure to keep accurate records could result in criminal or civil
penalties. See Tex. Fin. Code Ann. § 392.304(a)(8) (prohibiting misrepresentations of
amount of consumer debt); id. § 392.402 (providing for criminal penalties for violations
of chapter 392 of Texas Finance Code); see also Fair Debt Collection Practices Act, 15
U.S.C.A. § 1692e(2)(a) (prohibiting misrepresentation of amount of debt); id. § 1692l
(providing for administrative enforcement of Administrative Debt Collection Practices
Act). These circumstances otherwise indicate the trustworthiness of the Chase Bank
documents.3 See Simien, 321 S.W.3d at 243–44. Accordingly, because the business-
records affidavit at issue here meets the criteria for admission as business records under
3
Ainsworth mistakenly relies on Old Republic, a case from the First Court of Appeals, for the
proposition that documents under the business records exception to the hearsay rule generally come in
fully proven, unless contract execution is challenged by verified denial. Old Republic Ins. Co. v. Edwards,
No. 01-10-00150-CV, 2011 WL 2623994, at *11 (Tex. App.—Houston [1st Dist.] June 30, 2011, no pet)
(mem. op.). But Old Republic is not a case dealing with a credit card debt. See id. A credit or charge card
agreement need not be in writing or signed. See Tex. Bus. & Comm. Code Ann. §26.02(a)(2)(A)
(exempting credit or charge cards from the requirement that a loan agreement must be in writing); see
also Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 204 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (concluding that use of and payment on a credit card account is sufficient to establish
the card holder’s intent to be bound by the credit card agreement). Although Ainsworth denied applying
for, receiving, using, and making payments on the account at issue here, his credibility was an issue for
the trier of fact. See, e.g., Grounds v. Tolar Indep. Sch. Dist., 856 S.W.2d 417, 422 (Tex. 1993) (stating
that trial court is arbiter of both factual and legal issues in a non-jury trial); Cent. Forest S/C Partners,
Ltd. v. Mundo-Mundo, Inc., 184 S.W.3d 296, 302 (Tex. App.—Dallas 2005, no pet.) (“In a bench trial, it
is the duty of the trial court to pass on the credibility of the witnesses and on the weight to be given their
testimony.”).
9
Texas Rule of Evidence 803(6), the trial court did not abuse its discretion in admitting
these records. See id. We overrule Ainsworth’s first issue.
B. Standing
Here, CACH asserts standing as an assignee of the debt-holder. An assignee stands
in the assignor’s shoes and may assert those rights that the assignor could assert,
including bringing suit. See Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 420
(Tex. 2000); see also Sw. Bell Tel. Co. v. Marketing on Hold Inc., 308 S.W.3d 909, 916
(Tex. 2010) (holding that because class action representative held contractually valid
assignments, representative stepped “into the shoes of the claim-holders and is considered
under the law to have suffered the same injury as the assignors and have the same ability
to pursue the claims”). As evidence of its status as an assignee, CACH provided the
business-records affidavit described above. These documents establish that CACH has
standing to sue because Chase assigned its ownership interest in Ainsworth’s debt to
CACH. Further, Ainsworth has not challenged Chase’s right to sue for recovery of this
debt. As the assignee of Chase, CACH was entitled to assert any rights Chase could
assert, including bringing suit. Thus, Ainsworth’s second issue is without merit, and we
overrule it.
C. Sufficiency of the Evidence
In conducting a legal-sufficiency review, we must consider all of the evidence in
the light most favorable to the verdict and indulge every reasonable inference that would
support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). In determining
whether legally sufficient evidence supports the finding under review, we must consider
evidence favorable to the finding if a reasonable fact-finder could consider it, and
disregard evidence contrary to the finding unless a reasonable fact-finder could not
disregard it. Id. at 821.
10
The business-records affidavit, described above, provides legally sufficient
evidence to support the trial court’s verdict. It establishes that Ainsworth incurred a credit
card debt, that he failed to pay it, and that this debt was ultimately acquired by CACH.
Although Ainsworth denied applying for, receiving, using, and making payments on the
account at issue here, his credibility was an issue for the trier of fact. See, e.g., Grounds v.
Tolar Indep. Sch. Dist., 856 S.W.2d 417, 422 (Tex. 1993) (stating that trial court is
arbiter of both factual and legal issues in a non-jury trial); Cent. Forest S/C Partners, Ltd.
v. Mundo-Mundo, Inc., 184 S.W.3d 296, 302 (Tex. App.—Dallas 2005, no pet.) (“In a
bench trial, it is the duty of the trial court to pass on the credibility of the witnesses and
on the weight to be given their testimony.”). Because the record contains legally
sufficient evidence to support the trial court’s verdict, we overrule Ainsworth’s fifth
issue.
Ainsworth’s Testimony Regarding Bank Records
In his third issue, Ainsworth asserts that the trial court should have sustained his
objection to his testimony regarding documents—the Wells Fargo statements—that were
neither offered nor admitted into evidence. As described above, these documents
consisted of copies of Ainsworth’s banking records that he produced to CACH during
discovery. To reiterate, we review a trial court’s decision to admit or exclude evidence
under an abuse-of-discretion standard. Bayer Corp., 214 S.W.3d at 609.
Ainsworth testified, without objection, that the Wells Fargo statements shown to
him by CACH’s counsel were his bank statements. He further acknowledged that these
statements reflected his name, his late wife’s name, and his mailing address, and that he
had seen these statements prior to trial. In fact, Ainsworth answered nine questions about
these documents before his counsel objected that he was “testifying to documents not in
evidence.” Thus, Ainsworth’s objection was not timely. See Tex R. Evid. 103 (requiring a
timely objection to admission of evidence); Tex. R. App. P. 33.1(a) (same).
Further, CACH responded that the records were offered to refresh Ainsworth’s
recollection and impeach his credibility because he denied knowing about the debt at
11
issue. See Tex. R. Evid. 612 (providing that a witness may use a writing to refresh his
memory, but that if so used, the adverse party is entitled to have the writing produced at
the hearing, to inspect it, to cross-examine the witness thereon, and to introduce portions
of the writing into evidence relating to the witness’s testimony). Neither CACH nor
Ainsworth attempted to have these records admitted. The credibility of a witness may be
attacked by any party, including the party calling the witness. Tex. R. Evid. 607. Under
these circumstances, we cannot say that the trial court abused its discretion in admitting
Ainsworth’s testimony regarding these documents. We overrule appellant’s third issue.
CACH’s Attorney’s Fees
In issue four, Ainsworth contends the trial court erred by allowing the testimony of
CACH’s attorney, Richard Clark, regarding his fees. Specifically, Ainsworth asserts that,
because Clark claimed a privileged fee-agreement contract with CACH, Clark should not
have been permitted to testify. Ainsworth further contends that CACH’s counsel failed to
establish any of the Arthur Anderson4 factors regarding the reasonableness and necessity
of attorney’s fees. Finally, Ainsworth asserts that CACH failed to segregate its attorney’s
fees between recoverable and non-recoverable claims.
Texas law prohibits recovery of attorney’s fees unless authorized by statute or
contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006).
“Reasonable” attorney’s fees are available to a prevailing party on a breach of contract
claim. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 2008). We review an award
of attorney’s fees on the basis of breach of contract for an abuse of discretion. E.g.,
Llanes v. Davila, 133 S.W.3d 635, 640 (Tex. App.—Corpus Christi 2003, pet. denied)
(citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990) (per
curiam)). The test for an abuse of discretion is whether the trial court’s decision is
arbitrary or unreasonable. Id. (citing Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223,
226 (Tex. 1991)). Finally, although the trial court has discretion to fix the amount of
4
See Arthur Anderson & Co. v. Perrry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
12
attorney’s fees, it does not have discretion to deny attorney’s fees entirely if they are
proper. Hassell Constr. Co., Inc. v. Stature Comm. Co., Inc., 162 S.W.3d 664, 668 (Tex.
App.—Houston [14th Dist.] 2005, no pet.).
Regarding Clark’s testimony, Ainsworth’s attorney lodged the following
objection:
Judge, I have some objections as to his testimony on attorney’s fees.
Nowhere at any point have they told us how much. We asked them for
time records in our request for production. He said they didn’t exist. We
asked for a copy of the contract. They claimed privilege. . . .
I would object to him offering any testimony on attorney’s fees,
whatsoever.
Clark responded that he was statutorily entitled to attorney’s fees, that he does not keep
time records on debt cases, and that he has a contingency fee of twenty-five percent. He
further asserted that the information Ainsworth had requested contained attorney/client
information that was privileged. The trial court overruled Ainsworth’s objection and
permitted Clark to testify. Ainsworth has not established that the contingency-fee
agreement was not protected by the attorney/client privilege. Accordingly, we see no
abuse of discretion in the trial court’s ruling, and overrule this portion of Ainsworth’s
fourth issue.
Turning to the reasonableness of Clark’s fees, he testified as follows:
He has been a licensed attorney since May of 1993;
He has prosecuted debt collections for the past eighteen years and knows what
other attorneys charge as reasonable fees;
The twenty-five percent contingency fee on the principle amount owed is
reasonable and necessary given the amount of work he put into this case;
He has “probably put in three times the amount” of time he usually puts into
debt collection cases in this case;
He considered all the work he put into this case to be recoverable, i.e., he did
not need to segregate his fees between his work on CACH’s breach of contract
claim and his work defending against Ainsworth’s counterclaims;
He does not keep hours on debt collection cases; and
13
He was requesting $1,507.13 in attorney’s fees.
Clark’s testimony covers some of the Arthur Anderson factors. For example, Clark
established his experience in working on this type of case and explained that he was
aware of the customary fees charged locally for similar services. See Arthur Anderson &
Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (listing eight factors a
factfinder should consider when determining the reasonableness of attorney’s facts). He
further testified that this case required about three times the usual amount of time it takes
him to prosecute similar cases. Id.
Although not all the Arthur Anderson factors are addressed by Clark’s testimony,
a litigant is not required to present evidence on each of these factors. Acad. Corp. v.
Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex. App.—Houston
[14th Dist.] 2000, no pet.). The trier of fact may also look at the entire record, the
evidence presented on reasonableness, the amount in controversy, the common
knowledge of the participants as lawyers and judges, and the relative success of the
parties in determining the reasonableness of the attorney’s fees. Id. Here, the trial judge
did not award Clark the full amount he requested ($1,507.13), instead awarding him only
$1,150.00. We further note that, as discussed above, Ainsworth requested a substantially
larger sum for attorney’s fees—$5,120.00. Considering the above described testimony, as
well as the additional factors set forth in Academy Corporation listed above, we conclude
that the trial judge was within his discretion to award CACH $1,150.00 in attorney’s fees.
We overrule this portion of Ainsworth’s fourth issue.
Ainsworth next asserts in this issue that CACH was required to segregate its fees
between its recoverable breach of contract fees and its unrecoverable fees on his
counterclaims. If any attorney’s fees relate solely to claims for which fees are not
recoverable, a claimant must segregate recoverable from unrecoverable fees. Tony Gullo
Motors I, 212 S.W.3d at 313. “Intertwined facts do not make all attorney’s fees
recoverable; it is only when discrete legal services advance both a recoverable and
14
unrecoverable claim that they are so intertwined that they need not be segregated.” Id. at
313–14.
Here, all the claims at issue before the trial court involved CACH’s successful
breach-of-contract claim. CACH’s claim and Ainsworth’s counterclaims depended upon
the same essential facts, using the same documents and witnesses. See id. at 314. Hence,
the legal work performed by CACH’s attorney advanced both the prosecution of its
breach-of-contract claim and the defense of Ainsworth’s counterclaims. The legal work
performed by CACH’s attorney advanced both recoverable and nonrecoverable claims.
See id. at 313–14; cf. 7979 Airport Garage, L.L.C. v. Dollar Rent a Car Sys., Inc., 245
S.W.3d 488, 507–09 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (concluding
that fees incurred in defending against counterclaims did not have to be segregated from
those incurred in prosecuting breach-of-contract claim because claims and counterclaims
depended on same essential facts, relied on same documents and witnesses, and appellee
had to defeat appellant’s claims before it could recover). Under these circumstances, we
conclude that CACH was not required to segregate its attorney’s fees. We overrule
Ainsworth’s fourth issue in its entirety.
Ainsworth’s Counterclaims
In his sixth and final issue, Ainsworth contends that the trial court erred by
denying his counterclaim. The totality of his argument on this issue is as follows:
As stated above, if the Court had properly excluded CACH’s evidence,
there would have been no evidence of CACH’s claim; therefore, the
Counterclaim, of which there was evidence of, would lie.
The Trial Court erred by denying the Counterclaim of Ainsworth.
The Court of Appeals, in reversing and rendering that CACH should take
nothing should therefore also render this issue of Ainsworth’s
Counterclaim.
No legal authority or record references are provided for this issue. Accordingly, it
has not been properly briefed, and it is waived. See Tex. R. App. P. 38.1(i) (“The brief
must contain a clear and concise argument for the contentions made, with appropriate
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citations to authorities and to the record.”); Priddy v. Rawson, 282 S.W.3d 588, 596, 601
(Tex. App.—Houston [14th Dist.] 2009, pet. denied). Accordingly, this issue presents
nothing for our review and is overruled.
CONCLUSION
Having overruled each of Ainsworth’s issues, we affirm the trial court’s judgment.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
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