Tuesday, December 13, 2011

Party’s own attorney may testify, file affidavit (on legal fees and their reasonableness) ...

Although an interested witness, a party’s attorney may testify on attorneys‘ fees. Fee affidavit may suffice for award of fees by summary judgment – especially when the opposing party does not file a counter-affidavit. 
Although the reasonableness of attorney’s fees often is a fact issue, "[w]ell-settled law recognizes that the affidavit of an attorney representing a claimant constitutes expert testimony that will support an award of attorney’s fees in a summary judgment proceeding."  Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 513 (Tex. App.—Houston [1st Dist.]  2009,  pet. denied).

A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Tex. R. Civ. P. 166a(c).  

Thus, an affidavit filed by the movant’s attorney that sets forth his qualifications, his opinion regarding reasonable attorney’s fees, and the basis for his opinion will be sufficient to support summary judgment, if uncontroverted. In re Estate of Tyner, 292 S.W.3d 179, 184 (Tex. App.—Tyler 2009, no pet.) (citing  Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373 (Tex. App.—San Antonio 1999, pet. denied)).  

SOURCE: HOUSTON COURT OF APPEALS - FOURTEENTH DISTRICT - 14-11-00048-CV – 12/13/11; Case style: Delcor USA, Inc. v. Texas Industrial Specialties, Inc.

Attorney’s fee affidavit found sufficient

Here, [ Attorney ] Walter states in her affidavit that (1)  she  has been licensed in the State of Texas since 1988, practices predominantly in Harris County and the surrounding counties, and is familiar with the attorney’s fees charged in this type of matter; (2) TISI incurred fees of $4,800 for drafting, reviewing, and filing the original petition, arranging service of the citation, drafting and finalizing requests for disclosure, requests for production, and interrogatories, reviewing Delcor’s discovery responses, negotiating a
possible settlement and preparing a proposal, and preparing the motion for summary judgment and attending the hearing; and (3) the fees are ―reasonable and necessary  for the prosecution of this case.‖

[ Appellant ] complains that the affidavit does not delineate how much time was spent on each task, how many hours were spent on the entire case, or the hourly rate Walter believes is reasonable.  Although fact finders may use such evidence to determine if a fee is reasonable, these particular details are not required to establish a reasonable attorney’s fee as a matter of law.  See McGlown v. Ashford Park Homeowners Ass’n, Inc., No. 01-08-00619-CV, 2009 WL 1635310, at *3 (Tex. App.—Houston [1st Dist.] June 11, 2009, no pet.) (mem. op.).    Similarly, it is better practice for attorneys to identify the factors relevant for determining the reasonableness of their fee, but this practice is not required for a court to award reasonable attorney’s fees.  Cf. Garcia v. Gomez, 319 S.W.3d 638, 641–42 (Tex. 2010) (reversing the trial court’s denial of reasonable attorney’s fees under Section 74.351 of the Civil Practice and Remedies Code because the attorney’s testimony about his qualifications, familiarity with similar cases, and brief statement about the ―the
FN: See Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (identifying factors).

reasonable and necessary attorney’s fee‖ was non-conclusory  and  ― some evidence‖ to support the award, though it was ―not conclusive‖).

Walter’s affidavit is clear, positive, and direct; it is otherwise credible and free
from contradictions and inconsistencies; and Delcor could have, but did not, contradict it
by presenting evidence of its own.  We hold that Walter’s affidavit adequately supports
the award  of  attorney’s fees on summary judgment in this case because it establishes
Walter’s qualifications to opine on a reasonable fee, her familiarity with attorney’s fees
typically charged in these types of matters, the legal services  actually rendered to TISI,
and her opinion that the fees are reasonable and necessary for the services rendered.  See
In re Estate of Tyner, 292 S.W.3d at 184–85 (affirming summary judgment for attorney’s
fees when the affiant stated he was a licensed attorney, was familiar with the reasonable
and necessary fees charged in similar matters, had personal knowledge  of the services
rendered, and the fees were reasonable, necessary, and customary); Haden, 332 S.W.3d at
513–15 (affirming summary judgment when the  affiant described his qualifications,
stated that the affiant was familiar with the fees charged for these types of cases in the
geographic area, listed the services  rendered, and identified some of the nonexclusive
factors for calculating a reasonable attorney’s fee);  see also  Pham v. Inwood N.
Homeowners’ Ass’n, Inc., No.  14-96-00380-CV, 1997 WL 211637, at *2 (Tex. App.—
Houston [14th Dist.] May 1, 1997, no writ) (not designated for publication) (stating that
the attorney’s affidavit would support a summary  judgment for attorney’s fees in the
absence of controverting evidence when the affiant stated she was an attorney in the
geographic area and familiar with the usual and customary fee charged in this type of
litigation, listed the services rendered, and opined that the fee was reasonable)

SOURCE: HOUSTON COURT OF APPEALS - FOURTEENTH DISTRICT - 14-11-00048-CV – 12/13/11; Delcor USA, Inc. v. Texas Industrial Specialties, Inc.

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