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.
FEE AFFIDAVIT IN SUMMARY JUDGMENT CONTEXT
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.
