in the Interest Of: E.B., a Child ( 2015 )

Affirmed; Opinion Filed September 29, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00295-CV
IN THE INTEREST OF: E.B., A CHILD
On Appeal from the 302nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-10-03980 U
MEMORANDUM OPINION
Before Justices Francis, Lang, and Evans
Opinion by Justice Evans
Appellant Ramesh Bhatnagar appeals the decision of the trial court to award attorney’s
fees to his former wife, appellee Adriana Bhatnagar.1 Appellant contends that the trial court
abused its discretion and requests that this Court reverse the decision to award fees and remand
for further hearings. We affirm the judgment of the trial court.
BACKGROUND
Appellant and appellee married and had a child, E.B. In 2010, appellee filed for divorce
and the trial court rendered an Agreed Final Decree of Divorce. In 2012, appellant sought to
modify the parent-child relationship and appellee filed a counter-petition to modify the parent-
child relationship as well.
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Three issues were initially raised on appeal by appellant. By letter dated August 20, 2015, however, appellee
advised the Court that the parties agreed to the trial court’s modification of an order which made points of error one
and two moot. Accordingly, this opinion only addresses issue three.
A trial date was set for October 7, 2013. Although appellant was granted permission to
appear at trial by Skype, he failed to appear either electronically or in person although he was
represented by counsel. As appellee sought recovery of her attorney’s fee, her counsel, Melton
Myers, testified at the conclusion of the trial. Myers testified that he began representing appellee
in October 2012 and that he provided a redacted copy of his billing statements to everyone. The
statements, however, were not admitted into evidence. Myers testified that 82.3 hours of his
time and 10.28 hours of clerical time were spent on this case. Myers further testified that, due to
the numerous hearings in this case, total fees were owed in the amount of $19,057.50. In
addition, appellee owed costs of $1,572.94. Appellant’s counsel neither objected to Myers’s
testimony, nor asked him any questions, nor called any of his own witnesses. The trial court
awarded appellee her attorney’s fees and costs. Appellant then filed this appeal.
ANALYSIS
A. Standard of Review
Most appealable issues in a family law case, including the award of attorney’s fees, are
evaluated under an abuse of discretion standard. See In re R.C.S., 167 S.W.3d 145, 152 (Tex.
App.—Dallas 2005, pet. denied) (award of attorney’s fees in suit for modification of parent-child
relationship reviewed for abuse of discretion); see also Jacobs v. Dobrei, 991 S.W.2d 462, 463
(Tex. App.—Dallas 1999, no pet.) (“We give wide latitude to a trial court’s decision on custody,
control, possession and visitation matters. We reverse the trial court’s decision only if it appears
from the record as a whole that the trial court abused its discretion.”). A trial court abuses its
discretion when it acts in an arbitrary or unreasonable manner, or when it acts without reference
to any guiding principles. In re E.A.C., 162 S.W.3d 438, 441 (Tex. App.—Dallas 2005, no pet.).
In family law cases, the abuse of discretion standard overlaps with the traditional
sufficiency standards of review. See In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009,
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no pet.). As a result, insufficiency of the evidence is not an independent ground for asserting
error, but is a relevant factor in assessing whether the trial court abused its discretion. Day v.
Day, 452 S.W.3d 430, 433 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). Because of this
overlap between the abuse of discretion and sufficiency of the evidence standards of review, the
courts engage in a two-pronged approach to determine whether the trial court (1) had sufficient
information on which to exercise its discretion and (2) erred in its application of that discretion.
Id.
B. Analysis
Appellant argues that the trial court abused its discretion in awarding appellee her
attorney’s fees because the evidence at trial was insufficient under the standard established by
Long v. Griffin, 442 S.W.3d 253 (Tex. 2014). We disagree.
In Long, the supreme court addressed the evidence required to prove the reasonableness
and necessity of attorney’s fees under the lodestar method. Id. Ultimately, the supreme court
held that a party choosing the lodestar method of proving attorney’s fees must provide evidence
of the time expended on specific tasks to enable the fact finder to meaningfully review the fee
application. Id. As the attorneys had failed to provide sufficient evidence of the time expended
on the specific tasks for which the fees could be recovered, the supreme court held the evidence
was legally insufficient. Id. at 256.
In this case, however, appellee used the traditional method to prove up the reasonableness
of her attorney’s fees and, as such, the supreme court’s holding in Long is inapplicable. As this
case involved the parent-child relationship under Title 5 of the family code, appellee was entitled
to seek reasonable attorney’s fees and expenses. See TEX. FAM. CODE ANN. § 106.002 (West
2014) (“In a suit under this title, the court may render judgment for reasonable attorney’s fees
and expenses and order the judgment and postjudgment interest to be paid directly to an
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attorney.”). Texas court have allowed parties to prove their attorney’s fees under this section of
the family code using the traditional method. In re A.B.P., 291 S.W.3d at 98–99.
Under the traditional method, the court looks to the following factors to determine the
amount of the award: (1) the time, labor and skill required to properly perform the legal service;
(2) the novelty and difficulty of the questions involved; (3) the customary fees charged in the
local legal community for similar legal services; (4) the amount involved and the results
obtained; (5) the nature and length of the professional relationship with the client; and (6) the
experience, reputation and ability of the lawyer performing the services. Id. at 98. A trial court
is not required to receive evidence of each of these factors. Id. Further, testimony from a party’s
attorney about a party’s attorney’s fees is taken as true as a matter of law if the testimony is not
contradicted by any other witness and is clear, positive, direct and free from contradiction. Id.
Myers testified about his attorney’s fees and costs at the conclusion of the trial as follows:
As you know, my name is Melton Myers. I’m licensed to practice law in the State
of Texas, and I’ve been practicing over twenty years here. I’ve represented
[appellee] in this case, and I agreed to take this case at an hourly rate of $225 an
hour for myself and $50 an hour for clerical assistance. This case began in
October of 2012. I believe I’ve provided a copy of--a redacted copy, at least, of
my billing statements to everyone. There’s been - - as everyone has testified
there’s been multiple, multiple hearings in this case. Total charges have been 82.3
hours of my time and 10.28 hours of clerical time. Expenses for subpoenas to Ms.
Bergin, Ms. Guardiola and Truesdale of $75 and $86 respectively. We paid for the
court reporter when Ms. Kashyap flew down here from Canada. We paid for a
court reporter in the court that day. That cost us $1,007.40. And then with the
many different hearings that we’ve had, the parking alone has come to $116.
Copy costs for the various hearings and for this one, $83.80 and $73.50.
Minimum posting, we used couriers for hand-delivery on a lot of the documents,
especially discovery $110. The total comes to $20,630.44, and we’re asking the
Court to award those attorney’s fees to [appellee] to be paid by [appellant].
During his testimony, Myers provided evidence regarding several of the factors listed above.
Further, appellant did not object to any of Myers’s testimony nor did his attorney cross-examine
Myers. Finally, appellant’s attorney did not offer any witness to contradict Myer’s testimony.
Accordingly, we conclude that appellee provided sufficient, uncontradicted evidence establishing
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her attorney’s fees and that the trial court did not abuse its discretion in awarding such fees to
appellee.
CONCLUSION
We resolve appellant’s sole issue against him and affirm the trial court’s judgment.
140295F.P05
/ David Evans/
DAVID EVANS
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF E.B., A CHILD, On Appeal from the 302nd Judicial District
Court, Dallas County, Texas
No. 05-14-00295-CV Trial Court Cause No. DF-10-03980 U.
Opinion delivered by Justice Evans.
Justices Francis and Lang participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee recover her costs of this appeal from appellant.
Judgment entered this 29th day of September, 2015.
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