Jerry Weaks and Joyce Weaks v. Kathleen Jeanette White , 479 S.W.3d 432 ( 2015 )

NO. 12-14-00253-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JERRY WEAKS AND JOYCE WEAKS, § APPEAL FROM THE 392ND
APPELLANTS
V. § JUDICIAL DISTRICT COURT
KATHLEEN JEANETTE WHITE,
APPELLEE § HENDERSON COUNTY, TEXAS
OPINION
Jerry Weaks and Joyce Weaks appeal an adverse summary judgment rendered in
Kathleen Jeanette White’s suit against them concerning an executory contract for the conveyance
of real property. On appeal, the Weakses raise three issues concerning the applicability of
common law defenses and the awards for damages and attorney’s fees. We affirm.
BACKGROUND
On June 5, 2002, the Weakses, as sellers, and White, as purchaser, executed a document
entitled “Contract for Deed” pursuant to which White agreed to make a down payment and
monthly installments for ten years to purchase a small tract of land and a mobile home. White
did not make a payment in December 2011, January 2012, or February 2012. In February 2012,
the Weakses demanded that she pay the amount past due as well as the remaining amount due
under the contract, a total of $2,142.74, within three days of the demand letter, “or be out.” On
February 23, either at the Weakses’ direction or by mistake, the water meter was removed from
the property, depriving White of access to water. On March 15, 2012, while still residing in the
property at issue, White sued the Weakses for violations of Chapter 5, Subchapter D, of the
Texas Property Code, the Texas Deceptive Trade Practices Act, and breach of their duty of good
faith and fair dealing. She asked for statutory damages, economic and actual damages, damages
for mental anguish, exemplary damages, and cancellation and rescission of the contract. She
also sought a writ to restore her water service and a temporary restraining order to restrain the
Weakses from affecting her utility services or interfering with her use and enjoyment of the
property. Additionally, she asked for an award of attorney’s fees.
The trial court immediately signed the requested temporary restraining order and writ to
restore the water. Shortly thereafter, the court signed a temporary injunction. Six months later,
while still residing on the property at issue, White filed a motion for summary judgment
addressing four sections of Chapter 5 of the property code. In support of her motion, she relied
on deemed admissions, her affidavit, her attorney’s affidavit, the contract for deed, and the
Weakses’ demand letter. She specifically waived all causes of action and relief not requested in
the motion.
The Weakses responded to the motion, asserting that they complied, or at least
substantially complied, with the statutory requirements. They also asserted that White is
estopped from seeking damages and barred by laches. They averred generally that “it appears
that there are genuine issues as to material facts.” In support of their response, the Weakses
provided only an affidavit signed by both of them.
After a hearing on the motion, the trial court found that the Weakses failed to comply
with four sections of Chapter 5 of the property code as alleged and that White is entitled to
damages and attorney’s fees. The court rendered a partial summary judgment adjudging the
Weakses liable for violation of property code Sections 5.069, 5.070, 5.072, and 5.077. The court
decreed that White is entitled to recover $43,319.53 less the dollar amount of the rental value of
the months that she occupied the property after she rescinded the contract by filing suit. The
court further decreed that the Weakses are liable to White for $1,000.00 for violation of Section
5.077 and ordered them to pay attorney’s fees in the amount of $10,250.00.
The parties stipulated that White occupied the property for twenty-one months after filing
suit and the fair market rental value was $356.81 per month for a total offset of $7,493.01. In the
final judgment, the court adjudged that White recover from the Weakses $35,826.52 in damages,
$10,250.00 in attorney’s fees, and costs of court.
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OFFSET
In their first issue, the Weakses contend that the trial court erred in determining the
proper offset or reasonable rent against the refund of White’s purchase money. They argue that
if White were to receive the amount awarded, without restoring the rental value of her
occupation of the property, she would be receiving an unfair windfall. They assert that the
purchaser must pay restitution for the total period of time she occupied the property, not just the
time period after giving notice of rescission. Accordingly, the argument continues, the purchase
money figure determined by the trial court, $43,319.53, should be offset by the number of
months that White occupied the property, 139, multiplied by the reasonable rental value. The
parties agreed that the reasonable rental value was $356.81 per month. This would result in a
restitution figure of $49,596.59, completely offsetting the reimbursement due under the
judgment. Additionally, White would owe $6,277.06 for her occupancy.
Applicable Law
A contract for deed, unlike a typical secured transaction involving a deed of trust, is a
financing arrangement that allows the seller to maintain title to the property until the buyer has
paid for the property in full. Morton v. Nguyen, 412 S.W.3d 506, 509-10 (Tex. 2013). Chapter
5, Subchapter D of the Texas Property Code imposes various conditions and disclosure
requirements on sellers entering into contracts for deed, also known as executory contracts for
the conveyance of real property. TEX. PROP. CODE ANN. §§ 5.069-.074, 5.076-.077 (West 2014).
A seller’s failure to comply with Subchapter D’s requirements entitles a buyer to “cancel and
rescind” a contract for deed and “receive a full refund of all payments made to the seller.” Id. at
§§ 5.069(d)(2), 5.070(b)(2), 5.072(e)(2). Subchapter D’s cancellation-and-rescission remedy
contemplates the common law element of mutual restitution. Morton, 412 S.W.3d at 511. Thus,
while the buyer is entitled to a full refund of all payments made to the seller, the statute also
requires that the buyer restore to the seller the value of the buyer’s occupation of the property.
Id. at 512. The buyer must restore to the seller supplemental enrichment in the form of rent for
the buyer’s interim occupation of the property upon cancellation and rescission of the contract
for deed. Id. at 508.
Analysis
The parties agreed that White rescinded the contract on the date she filed her petition.
The trial court determined that the offset amount should be $7,493.01 based on the twenty-one
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months that White occupied the property after she filed this suit. The property code provides
that the seller’s failure to furnish certain required information to the purchaser “entitles the
purchaser to cancel and rescind the executory contract and receive a full refund of all payments
made to the seller.” TEX. PROP. CODE ANN. §§ 5.069(d)(2), 5.070(b)(2), 5.072(e)(2). The Texas
Supreme Court has considered the question of whether a rescinding purchaser must restore to the
seller the benefits the purchaser received under the contract. That court determined that, upon
rescission, the purchaser must restore to the seller the value of the purchaser’s post-rescission
occupation of the property. See Morton, 412 S.W.3d at 512. Because the trial court’s formula
conforms to the supreme court’s interpretation of Chapter 5, Subchapter D regarding this issue,
we overrule the Weakses’ first issue.
COMMON LAW DEFENSES
In their second issue, the Weakses assert that the trial court erred in failing to recognize
any common law defenses to White’s claims. They argue that they raised the defenses of
estoppel and laches in their response to White’s motion for summary judgment, and they were
therefore entitled to a trial on the merits. They rely on Morton v. Nguyen, where the supreme
court recognized a common law element and applied it to the statutory remedy in Subchapter D,
extrapolating that the same reasoning applies to estoppel and laches.
Applicable Law
Statutory construction is a legal question, which we review de novo. Tex. Lottery
Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); City of Rockwall
v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). Our primary objective when construing a statute
is to determine the Legislature’s intent. Tex. Lottery Comm’n, 325 S.W.3d at 635. If the statute
is unambiguous, we must apply its words according to their common meaning without resort to
rules of construction or extrinsic aids. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We
may consider other matters in ascertaining legislative intent, including the objective of the law,
its history, and the consequences of a particular construction. TEX. GOV’T CODE ANN.
§ 311.023(1),(3),(5) (West 2013); Shumake, 199 S.W.3d at 284.
Statutes may modify common law rules. Dugger v. Arredondo, 408 S.W.3d 825, 829
(Tex. 2013). A statute may be interpreted as abrogating a principle of common law only when
either the express terms of the statute or its necessary implications clearly indicate such an intent
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by the legislature. Bruce v. Jim Walters Homes, Inc., 943 S.W.2d 121, 122-23 (Tex. App.—
San Antonio 1997, pet. denied). Common law defenses may not be used to defeat claims
brought under a statute that was not designed to be a codification of the common law. Smith v.
Baldwin, 611 S.W.2d 611, 616 (Tex. 1980) (held that DTPA not designed to be codification of
common law; DTPA was designed to provide consumers a cause of action for deceptive
practices without the burden of proof and numerous defenses encountered in a common law
fraud or breach of warranty suit); Frank B. Hall & Co. v. Beach, Inc., 733 S.W.2d 251, 264
(Tex. App.—Corpus Christi 1987, writ ref’d n.r.e.) (op. on reh’g) (held that common law defense
of contributory negligence cannot defeat insurance code claims).
Estoppel based in law prevents a party from taking positions contrary to those it took in
property deeds and contracts in order to preserve the document’s integrity. See Mathews v. Sun
Oil Co., 411 S.W.2d 561, 564 (Tex. Civ. App.—Amarillo 1966), aff’d, 425 S.W.2d 330 (Tex.
1968). Quasi-estoppel is an equitable doctrine that prevents a party from asserting, to another’s
disadvantage, a right inconsistent with a position previously taken. Lopez v. Munoz, Hockema
& Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). The doctrine applies when it would be
unconscionable to allow a person to maintain a position inconsistent with one to which he
acquiesced, or from which he accepted a benefit. Id. Thus, quasi-estoppel forbids a party from
accepting the benefits of a transaction or statute and then subsequently taking an inconsistent
position to avoid corresponding obligations or effects. Brooks v. Brooks, 257 S.W.3d 418, 423
(Tex. App.—Fort Worth 2008, pet. denied).
The defense of laches precludes a plaintiff from asserting legal rights after an
unreasonable delay against a defendant who has changed his position in good faith and to his
detriment because of the delay. Fair v. Arp Club Lake, Inc., 437 S.W.3d 619, 625 (Tex. App.—
Tyler 2014, no pet.). Laches is generally available as an affirmative defense solely in suits in
equity and therefore does not apply to statutory challenges. Phillips v. The Dow Chem. Co., 186
S.W.3d 121, 129 (Tex. App.—Houston [1st Dist.] 2005, no pet.). In such a suit, absent
extraordinary circumstances, the statute of limitations is the appropriate defense. Houston
Lighting & Power Co. v. City of Wharton, 101 S.W.3d 633, 638 (Tex. App.—Houston [1st
Dist.] 2003, pet. denied).
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Analysis
Although the Weakses’ argument does not make it clear which type of estoppel they
assert, it seems most likely estoppel based in law or quasi-estoppel. The pertinent portion of the
Weakses’ summary judgment response is as follows:
Plaintiff would appear to be estopped from making any further
complaints, or seeking damages, from or in regard to the Weaks, and would also
be barred by laches. This is because of the approximately 10 years that Plaintiff
occupied the property, made the payments (although usually late), and made no
complaint about any of the matters referred to in her petition or motion for
summary judgment. This is additionally because, after the misunderstandings
regarding the water meter were resolved, Plaintiff continued to either occupy the
property herself, or she let family members live in the house on the property.
Because the suit arises from the parties’ executory contract for the conveyance of real
property, we consider the history of the applicable statute. In 1995, the legislature amended
Chapter 5 of the property code to address serious abuses in the Texas-Mexico border region
known as “the colonias,” a rural area where many residents were financing the purchase of their
homestead properties through contracts for deed. See Flores v. Millennium Interests, LTD., 185
S.W.3d 427, 434-35 (Tex. 2005) (Wainwright, J., concurring). The legislature acted to provide
legal protection to these purchasers. The legislature further amended Chapter 5 in 2001 to
extend these protections to the remainder of the state’s contracts for deed. Id. at 435.
Subchapter D of Chapter 5 does not explicitly address the application of common law
defenses. However, the Legislature is capable of doing so when it chooses. See, e.g., TEX. CIV.
PRAC. & REM. CODE ANN. § 73.006 (West 2011) (providing that statute addressing libel does not
affect the existence of common law, statutory law, or other defenses to libel); TEX. LABOR CODE
ANN. § 406.033 (West Supp. 2014) (providing that certain common law defenses are unavailable
against an employer by an employee who is not covered by workers’ compensation insurance
and the section does not reinstate or otherwise affect the availability of defenses at common
law); TEX. FAM. CODE ANN. § 4.105(c) (West 2006) (providing that the remedies and defenses in
the section regarding marital agreements are the exclusive remedies or defenses, including
common law remedies or defenses).
Subchapter D was enacted to protect purchasers who execute a contract for deed. Flores,
185 S.W.3d at 435. The statute provides specific remedies to the aggrieved purchaser when the
seller does not comply with the statute. The purchaser is authorized to cancel the contract and
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obtain a full refund of all payments made to the seller up to the point of cancellation. See TEX.
PROP. CODE ANN. §§ 5.069(d)(2), 5.070(b)(2), 5.072(e)(2). There is no indication that the
Legislature intended estoppel defenses to be used to deny purchasers the statutory remedy.
Furthermore, application of an estoppel defense would prevent the purchaser from
cancelling the contract for deed and getting her money refunded after having the benefit of living
on the property. This is the opposite of what the statute provides. In Morton, the court focused
on the term “rescind” in Sections 5.069(d)(2), 5.070(b)(2), 5.072(e)(2), and 5.085(c)(2) and
determined that “rescission is the common name for the composite remedy of rescission and
restitution.” Morton, 412 S.W.3d at 510. Because rescission requires “mutual restitution,” the
court concluded that “the Legislature intended Subchapter D’s cancellation-and-rescission
remedy to also contemplate the common law element of mutual restitution.” Id. at 511. There
are no terms in Subchapter D that appear to contemplate the common law affirmative defense of
estoppel. On the contrary, Subchapter D heavily favors the purchaser when the seller is at fault.
Accordingly, the common law defense of estoppel cannot be used to defeat claims brought
pursuant to Chapter 5, Subchapter D of the property code. See Smith, 611 S.W.2d at 616.
White’s lawsuit raised claims pursuant to the property code. The statute of limitations is
the appropriate defense, not the equitable defense of laches, and this case presents no
extraordinary circumstances. See Houston Lighting & Power Co., 101 S.W.3d at 638. While
the supreme court in Morton determined that the Legislature intended Subchapter D’s
cancellation and rescission remedy to also contemplate the common law element of mutual
restitution, we detect no such intention to contemplate the use of the common law defenses of
estoppel and laches. We overrule the Weakses second issue.
ATTORNEY’S FEES
In their third issue, the Weakses assert that the trial court erred in awarding White the
total amount of attorney’s fees she claimed. They argue that only her claim pursuant to Section
5.077 provides for an award of attorney’s fees. Therefore, the argument continues, she should be
awarded fees only for the work she did on that one claim. The failure to limit the award to that
claim, they assert, results in an attorney’s fees award that is unreasonable. They request the
award be reduced or the issue of attorney’s fees be remanded for a hearing on the merits.
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Applicable Law
When a lawsuit involves multiple claims, the proponent of attorney’s fees must segregate
recoverable fees from those incurred on claims for which fees are not recoverable. Tony Gullo
Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006). Or, the party seeking to recover
attorney’s fees bears the burden of demonstrating that segregation is not required. Id.
A timely objection with supporting controverting evidence on the question of which fees
are recoverable is needed to reverse an award that includes nonsegregated fees. See Rapid
Settlements, Ltd. v. Settlement Funding, LLC, 358 S.W.3d 777, 787 (Tex. App.—Houston [14th
Dist.] 2012, no pet.). Therefore, a party waives any error arising from possibly awarding
nonrecoverable fees when the complaining party does not object to failure to segregate between
legal services for which fees are properly recoverable and those for which no recovery of fees is
authorized. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997).
Analysis
In her motion for summary judgment, White alleged that she is entitled to an award of
attorney’s fees pursuant to property code Section 5.077(c)(2). See TEX. PROP. CODE ANN.
§ 5.077(c)(2) (West 2014). She presented as supporting evidence the affidavit of her attorney
who asked for $10,250.00 as compensation for the time she spent working on the case. The
Weakses did not address the claim for attorney’s fees in their response to the motion for
summary judgment.
At the hearing on the motion, the trial court orally ruled in White’s favor on her four
claims of property code violations and the claim for attorney’s fees. The Weakses raised the
issue of the need to segregate attorney’s fees in a post-summary judgment hearing letter brief and
a motion to disregard the court’s prior finding. At a later hearing, White objected to
reconsideration of the attorney’s fee issue and the trial court sustained the objection, specifically
stating that it would not reconsider that issue. The court’s final summary judgment incorporates
its prior liability rulings and orders the Weakses to pay $10,250.00 in attorney’s fees.
A purchaser recovering liquidated damages under Section 5.077 of the property code is
entitled to reasonable attorney’s fees. See TEX. PROP. CODE ANN. § 5.077(c)(2). Sections 5.069,
5.070, and 5.072, the other bases for White’s claims, do not authorize an award of attorney’s
fees. See TEX. PROP. CODE ANN. §§ 5.069, 5.070, 5.072. Accordingly, we agree with the
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Weakses’ contention that White was actually entitled only to attorney’s fees attributable to her
attorney’s work on her Section 5.077 claim.
However, because the Weakses’ segregation argument was not included in a timely
response, the viability of their late complaint was left to the discretion of the trial court. See
Harvey v. Alexander, 671 S.W.2d 727, 729 (Tex. App.—Fort Worth 1984, no writ). The
Weakses do not assert on appeal that the trial court abused its discretion by refusing to consider
their late segregation argument. Accordingly, the Weakses waived their complaint that White
failed to segregate recoverable fees from those incurred on claims for which fees are not
recoverable. See Solis, 951 S.W.2d at 389. We overrule the Weakses third issue.
DISPOSITION
Having determined the trial court committed no reversible error, we affirm the trial
court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered October 21, 2015.
Panel consisted of Worthen, C.J. and Hoyle, J.
Neeley, J., concurring in part and dissenting in part.
I concur with the majority’s opinion that the trial court did not err in the formula used in
calculating its damage award and in refusing to allow the Weakses to assert the common law
defenses of estoppel and laches. While I agree that the Weakses waived error as to White’s
failure to segregate between legal fees that were properly recoverable from those for which
recovery was not authorized, I disagree with the majority’s affirming the award of attorney’s fees
to White. A trial court’s summary judgment determination is reviewed de novo. Mann
Frankfort Stein & Lipp Advisor’s, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Valence
Operating Co. v. Dorsett, 1645 S.W.3d 656, 661 (Tex. 2005). In conducting a de novo review of
the trial court’s summary judgment, the appellate court can review the pleadings and evidence to
determine whether the trial court properly granted judgment. See Stevens v. State Farm Fire &
Cas. Co., 929 S.W.2d 665, 670 (Tex. App.—Texarkana 1996, writ denied); Bean v. Reynolds
Realty Grp., Inc., 192 S.W.3d 856, 860-61 (Tex. App.—Texarkana 2006, no pet.). The
summary judgment evidence must still support the appellate burden of showing no genuine issue
of material fact exists and that appellee is entitled to judgment as a matter of law. Nixon v. Mr.
Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Because I believe the affidavit filed
by White’s attorney to be legally insufficient to support the attorney’s fees award, I respectfully
dissent.
To constitute proper summary judgment evidence, an affidavit must be made on personal
knowledge, set forth facts that would be admissible in evidence, and show the affiant’s
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competence. TEX. R. CIV. P. 166a(f); United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex.
1997). The affidavit must be based on facts and cannot merely recite factual conclusions.
Conclusory statements that are not supported by facts are not proper summary judgment proof
because they are not credible or susceptible to being readily controverted and therefore,
constitute no evidence at all. See Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013); McIntyre
v. Ramirez, 109 S.W.3d 741, 749-50 (Tex. 2003); Ryland Grp. v. Hood, 924 S.W.2d 120, 122
(Tex. 1996).
An affidavit that is merely a sworn statement of the allegations in a pleading or that
simply paraphrases statutory language is conclusory and lacks probative force. See Lenoir v.
Marino, No. 01-13-00134-CV, 2015 WL 4043248, at *14 (Tex. App.—Houston [1st Dist.] 2015,
rule 53.7(f) motion granted) (not yet released for publication); Nichols v. Lightle, 153 S.W.3d
563, 570 (Tex. App.—Amarillo 2004, pet. denied). A summary judgment affidavit must state
that it is based on the affiant’s personal knowledge and that the facts in it are true. Kerlin v.
Arias, 274 S.W.3d 666, 668 (Tex. 2008). But the mere recitation that the affidavit is based on
personal knowledge is inadequate if the affidavit does not positively show a basis for the
knowledge. The affidavit must explain how the affiant has personal knowledge. Valenzuela v.
State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550, 552-53 (Tex. App.—Houston [14th Dist.]
2010, no pet.).
The evidence before us in support of White’s claim for attorney’s fees is the affidavit of
White’s attorney. That affidavit states as follows:
“My name is Jane Parreiras-Horta. I am over 18 years of age, of sound mind, and fully
competent to make this affidavit. I have personal knowledge of the facts stated herein and they are
all true and correct.
On March 2, 2012, Movant employed me in connection with the matter on which this suit
is based. I have spent 71 hours on this case. However, I am asking for compensation for only 41
hours which includes doing or causing to be done the following:
Plaintiff’s claim against Defendant was investigated, including researching real property
records.
Demand was made on Defendants.
Suit was prepared and filed, including obtaining ex parte relief.
Possible resolutions were discussed.
Discovery requests were prepared and served.
A motion for summary judgment was prepared.
Based on my education, training and experience, it is my opinion that a reasonable hourly
rate for my time in this case is $250.00. Movant is entitled to recover the reasonable attorney’s
fees requested herein pursuant to TEX. PROP. CODE ANN. § 5.077(c)(2).
It is my opinion that these fees are reasonable attorney’s fees based upon the following
factors:
1. The novelty and difficulty of the issues involved, the skill required to provide the legal services
properly, and the experience, reputation, and expertise of the lawyer or lawyers performing the
services;
2. The time and labor involved to perform the legal services properly; and
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3. The fee customarily charged in the community for similar services.” 1
The Texas Supreme has identified eight factors the fact finder should consider when
determining the reasonableness of an award of attorney’s fees. Arthur Anderson & Co. v. Perry
Equip. Corp., 945 S.W.2d 812, 818-19 (Tex. 1997) (quoting Tex. Disciplinary R. Prof. Conduct
1.04, reprinted in TEX. GOV’T CODE, tit. 2, subtit. G. app. A (State Bar Rules, art. X, § 9) (West
2013)). A party seeking attorney’s fees is not required to present evidence on all these factors.
Weaver v. Jamar, 383 S.W.3d 805, 814 (Tex. App.—Houston [14th Dist.] 2012, no pet.); State
& Cnty. Mut. Fire Ins. Co., 228 S.W.3d 404, 408 (Tex. App.—Fort Worth 2007, no pet.).
While the Arthur Anderson factors represent well established guidelines in presenting evidence
to support a claim for attorney’s fees, it has become less clear when general unsupported
statements contained within uncontroverted affidavits become so general as to become
conclusory. The result is uncertainty to both practitioners and trial courts as to where, if there is
one at all, the line is between probative and conclusory statements when uncontroverted
affidavits fail to contain underlying facts.
In Garcia v. Gomez, 319 S.W.3d 638, 648 (Tex. 2010), the Texas Supreme Court
examined the sufficiency of attorney’s fees evidence, which did not include underlying facts to
support the testifying attorney’s opinions. That relevant testimony is as follows:
My name is Ronald Hole. I’m an attorney practicing in Hidalgo County, doing medical-
malpractice law/litigation. I have done it since 1984. For a usual and customary case like this
these fees for handling it up to the point of dismissal, the reasonable and necessary attorney’s fees
for handling that is 12,200.
No billing statements were attached and are not required under Texas law. See In re A.B.P., 291
S.W.3d 91, 99 (Tex. App.—Dallas 2009, no pet.); Air Routing Int’l Corp (Canada) v. Britannia
Airways, Ltd., 150 S.W.3d 682, 692 (Tex. App.—Houston [14th Dist.] 2004, no pet.). Opposing
counsel did not cross-examine the witness, present any evidence on the issue of attorney’s fees,
or question the reasonableness of any of the fees.
The court of appeals affirmed the trial court’s finding this testimony was conclusory in
denying an award of attorney’s fees and further concluded the attorney’s testimony was
insufficient because it failed to establish the party actually incurred attorney’s fees which the
court described as “an essential statutory element.” Garcia v. Gomez, 286 S.W.3d 445, 449
(Tex. App.—Corpus Christi, rev’d by Garcia v. Gomez, 319 S.W.3d 638 (Tex. 2010)). In a split
decision, the Texas Supreme Court reversed the court of appeals and remanded the issue of
attorney’s fees to the trial court. In doing so, the majority stated “[a]n attorney’s testimony about
the reasonableness of his or her own fees is not like other expert testimony. . . . The attorney’s
testimony is not objectionable as merely conclusory because the opposing party, or that party’s
attorney, likewise has some knowledge of the time and effort involved and if the matter is truly
in dispute, may effectively question the attorney regarding the reasonableness of his fee.”
Garcia, 319 S.W.3d at 641. Under the circumstances in that case, the majority found the
testimony to not be merely conclusory, though the testimony lacked specifics, in that the
testimony represented some evidence of what a reasonable attorney’s fee might be in that case.
1
The trial court awarded attorney’s fees only through entry of summary judgment. The remaining portions
of the affidavit, which pertain to additional fees that would be incurred later, are not relevant to this dissent and have
been omitted.
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Justice Jefferson dissented pointing out the gaps in the attorney’s fee testimony and cited
numerous cases where the Texas Supreme Court had held a party seeking an award of attorney’s
fees carries the burden of proof and waives the right to those fees when it fails to produce
evidence of attorney’s fees. Id. at 645-47 (Jefferson, C.J., dissenting). Justice Johnson joined in
Justice Jefferson’s dissent, and in his own dissent pointed out the rule has long been that whether
testimony is conclusory turns on the testimony itself, not on whether the opposing party or his
attorney has knowledge of the matters underlying the testimony and examines the testifying
witness. He disagreed with the majority’s view that attorney’s testimony about reasonableness
of his or her fees is different from other expert’s testimony and failed to see valid reasons for the
majority’s holding that conclusory testimony, which according to longstanding precedent has no
probative force, is converted to evidence with probative force because an adverse party has
information or knowledge about matters underlying the testimony. Id. at 648 (Johnson, J.,
dissenting). Both believed the testimony was insufficient to support an award of attorney’s fees
and would have affirmed the court of appeals’ judgment.
The Fort Worth court of appeals in Sundance Minerals L.P., v. Moore, 354 S.W.3d 507,
515 (Tex. App.—Fort Worth 2011, pet. denied), following the holding in Garcia, found that
general statements without specifics represent evidence of reasonable and necessary attorney’s
fees sufficient to survive a legal sufficiency challenge. The court cited Garcia and numerous
courts of appeals cases in which similar affidavits were found to not be conclusory. Justice
Gabriel dissented by distinguishing the affidavit before the court from those in cases relied on by
the majority.
Other courts of appeals have accepted uncontroverted testimony as a matter of law as to
the reasonableness of attorney’s fees not supported by underlying facts when the testimony is
clear, positive, and direct, especially when the opposing party had the means and opportunity to
disprove and failed to do so. Clary Corp. v. Smith, 949 S.W.2d 452, 469 (Tex. App.—Fort
Worth 1997, no writ). However, the Dallas court in Eberstein v. Hunter, 260 S.W.3d 626, 630
(Tex. App.—Dallas 2008, no pet.), held that an uncontroverted attorney’s fees affidavit similar to
the one in Garcia was conclusory and therefore, no evidence of attorney’s fees.
This court in In re Estate of Tyner, 292 S.W.3d 179, 184 (Tex. App.—Tyler 2009, no
pet.), held that an uncontroverted affidavit filed by the movant’s attorney in a summary judgment
proceeding that sets forth the affiant’s qualifications, opinions regarding reasonable attorney’s
fees, and the basis for the opinions will be sufficient to support a summary judgment award of
attorney’s fees. The affidavit upheld in Estate of Tyner reflected the affiant was a licensed
attorney who was familiar with the reasonable and necessary fees charged, had personal
knowledge of the services rendered to appellee in the case and that stated those services were
reasonable, necessary, and customary. This affidavit was found to be legally sufficient to
support the trial court’s attorney’s fees award in the absence of the appellant’s presenting
controverting evidence raising a fact issue. See also Cammack the Cook, L.L.C. v. Eastburn,
296 S.W.3d 884, 894 (Tex. App.—Texarkana 2009, pet. denied); Gaughan v. Nat’l Cutting
Horse Ass’n, 351 S.W.3d 408, 422 (Tex. App.—Fort Worth 2011, pet. denied).
Though the legally sufficient threshold for an uncontroverted affidavit is minimal, I feel
the affidavit in this case falls below that minimum threshold for the following reasons. First, the
affidavit fails to state the affiant’s qualifications. The affidavit is silent about whether affiant is
an attorney. While the affiant bases her opinion as to what a reasonable hourly rate for “my
time” would be on “my education, training, and experience,” the affidavit fails to state any
specifics as to her education, training, and experience to support her opinion. The record before
12
us, in our de novo review, contains a sworn IOLTA Certificate signed by the affiant as well as
another affidavit verifying that the Request for Admissions served on the Weakses were not
answered in which affiant averred she “is the attorney of record for plaintiff in this case.”
White’s pleadings also reflect the affiant is White’s attorney. This does not change my view. As
a general rule, pleadings are not summary judgment evidence. Laidlaw Waste Sys. v. City of
Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). I do not believe a sworn statement that merely states
the affiant is the attorney for the party seeking attorney’s fees sufficiently sets forth the affiant’s
qualifications.
Second, the affidavit fails to set forth the specifics of affiant’s personal knowledge of the
novelty and difficulty or the issues presented in this case, the skill required to provide the needed
legal services to White, or the experience and expertise of the lawyer or lawyers performing the
legal services. The affidavit does not specify how many cases of this nature affiant had handled,
or whether she was “personally familiar” with the Arthur Anderson factors listed, or what a
customary fee for similar services would be in the community. Absent such information, the
statements are so general as to be merely conclusory. The affidavit fails to affirmatively show a
basis for the personal knowledge affiant has of facts supporting her opinions. See Valenzuela,
317 S.W.3d at 552-53.
I cannot agree that an affidavit in support of attorney’s fees that does not set forth the
affiant’s qualifications or affirmatively show the basis of the affiant’s personal knowledge is
sufficient to support an attorney’s fee award and is therefore, distinguishable from Garcia and
our holding in Estate of Tyner. Such would undermine the basic evidentiary requirements of
Texas Rule of Civil Procedure 166a(f). Accordingly, I would reverse the trial court’s award of
attorney’s fees to White.
GREG NEELEY
Justice
(PUBLISH)
13
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 21, 2015
NO. 12-14-00253-CV
JERRY WEAKS AND JOYCE WEAKS,
Appellants
V.
KATHLEEN JEANETTE WHITE,
Appellee
Appeal from the 392nd District Court
of Henderson County, Texas (Tr.Ct.No. 2012B-0340)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellants, JERRY WEAKS AND JOYCE WEAKS, for which execution may
issue, and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
Neeley, J., concurring in part and dissenting in part.