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concluding that a thorough attorney affidavit and contemporaneous billing records were sufficient to support summary judgment award of attorney's fees under Rohrmoos
Summary of this case from Stavron v. SureTec Ins. Co.Opinion
No. 05-18-00683-CV
08-13-2019
TODD M. FUHRMANN, BRIDGETTE KIRKPATRICK, KAREN E. DERRICK, AND MELVIN MCDANIEL, Appellants v. C & J GRAY INVESTMENTS PARTNERS, LTD., Appellee
On Appeal from the 59th Judicial District Court Grayson County, Texas
Trial Court Cause No. CV-13-0203
MEMORANDUM OPINION
Before Justices Whitehill, Partida-Kipness, and Pedersen, III
Opinion by Justice Pedersen, III
Todd M. Fuhrmann, Bridgette Kirkpatrick, Karen E. Derrick, and Melvin McDaniel appeal a summary-judgment order that awarded attorney's fees in favor of C & J Gray Investments Partners, Ltd. (C & J Gray), the appellee. We affirm.
BACKGROUND
This case involves approximately 212 acres of land in Grayson County (the Property) and the associated mineral estate. C & J Gray sued appellants and Speir Investments, Ltd., seeking a declaratory judgment to quiet title. Alternatively, it pled a cause of action for slander of title. Appellants filed a counterclaim and requested a declaratory judgment that ownership of the mineral estate vested in them. They also asserted a trespass to try title claim against C & J Gray. The parties filed competing motions for summary judgment regarding (i) the ownership of the mineral estate, and (ii) objections to some of the summary-judgment evidence. The district court overruled appellants' objections to C & J Gray's summary-judgment evidence, denied appellants' motion for summary judgment, granted C & J Gray's motion for summary judgment, and declared, among other relief, that title and ownership of the entire mineral estate of the Property is currently vested in C & J Gray.
Our prior opinion in Fuhrmann v. C & J Gray Investments Partners, Ltd. discusses in detail the background facts pertinent to this case. See No. 05-15-01387-CV, 2016 WL 7217252, at *1-5 (Tex. App.—Dallas Dec. 13, 2016, pet. denied) (mem. op.).
Appellants appealed the district court's order. We dismissed their appeal for lack of jurisdiction. See Fuhrmann v. C & J Gray Invs. Partners, Ltd. (Fuhrmann I), No. 05-14-00298-CV, 2014 WL 2048583, at *1 (Tex. App.—Dallas May 14, 2014, no pet.) (mem. op.). C & J Gray then dismissed its claims against Speir Investments and filed a motion for partial summary judgment on its claim for attorney's fees under the Declaratory Judgments Act (DJA). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-.011 (the DJA). In support of its request for attorney's fees, C & J Gray submitted an affidavit of its counsel, Scott Pelley, who testified as an expert witness. Pelley averred that $51,000 was a reasonable and necessary amount of fees "incurred in both the prosecution and the defense of this declaratory judgment action." However, at the hearing on the motion for summary judgment, C & J Gray, through the argument of counsel, withdrew its request for $5,100 in attorney's fees because those fees were related to the trespass to try title and slander of title claims, essentially conceding its summary judgment evidence included fees that were not recoverable. The court granted C & J Gray's motion and awarded it $45,900 in attorney's fees—i.e., the difference between $51,000 and $5,100—plus contingent fees on appeal.
See TEX. R. EVID. 702 ("A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's . . . specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue."); Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 830 (Tex. App,—Dallas 2014, no pet.) (noting that the reasonableness and necessity of attorney's fees requires expert testimony); Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d 144, 148 (Tex. App.—Houston [14th Dist.] 1986, no writ) ("An affidavit by an attorney representing a party in a suit, concerning an award of attorney's fees, whether in support of or in contradiction of an amount claimed to be reasonable, is admissible in a summary judgment proceeding and is considered expert testimony.").
Appellants appealed the district court's judgment, which at that point had become final. This Court reversed the judgment in part and affirmed it in part. See Fuhrmann v. C & J Gray Invs. Partners, Ltd. (Fuhrmann II), No. 05-15-01387-CV, 2016 WL 7217252, at *1, *12 (Tex. App.—Dallas Dec. 13, 2016, pet. denied) (mem. op.). We held that, under the circumstances, the district court could properly consider, and award, C & J Gray attorney's fees under the DJA. Id. at *10. However, we reversed the portion of the court's judgment awarding C & J Gray attorney's fees, based on the fact that its summary-judgment evidence did not conclusively establish that C & J Gray incurred $45,900 in attorney's fees relating to the declaratory judgment claims or that such fees and costs were reasonable and necessary. Id. at *11-12. We remanded the issue of fees for further proceedings. Id. at *1, *12.
On remand in the district court, C & J Gray filed a "First Amended Motion on Remand for Partial Summary Judgment on Attorney's Fees." The amended motion was a traditional motion for partial summary judgment. See TEX. R. CIV. P. 166a(c). It sought attorney's fees of $88,428.79, plus a conditional fee award of $15,000 in the event of an appeal to this Court and an additional $10,000 in the event of an appeal to the Texas Supreme Court. C & J Gray's supporting evidence included an affidavit from Pelley. According to C & J Gray, this affidavit is identical to Pelley's affidavit submitted in support of C & J Gray's original motion for partial summary judgment, except that the Pelley affidavit in support of the amended motion for partial summary judgment contains additional averments regarding the segregation of fees.
Appellants then filed an "Amended Answer and Response and Objection" to C & J Gray's amended partial summary-judgment motion. In support of this response, appellants filed an affidavit of their counsel, Richard H. Kelsey, who also testified as an expert witness. Kelsey criticizes the Pelley affidavit and avers that it "fails to conclusively show that the attorney's fees requested are reasonable and necessary."
On March 20, 2018, the district court signed an order that granted C & J Gray's amended motion for partial summary judgment and awarded its requested fees, as set forth above. Appellants filed a motion for reconsideration, which the court denied. This appeal followed.
Although styled as an order on partial summary judgment, the district court's order is final because it disposed of the sole remaining claim that had not yet been resolved—C & J Gray's claim for fees.
ANALYSIS
Appellants raise seven issues, each of which asserts a reason that the district court purportedly erred in granting C & J Gray's amended motion for partial summary judgment. We review a trial court's summary judgment ruling de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
Before examining appellants' issues, we begin by summarizing the Texas Supreme Court's recent decision in Rohrmoos Venture v. UTSW DVA Healthcare, LLP, which addressed the evidentiary standards for shifting attorney's fees. ___ S.W.3d ___, No. 16-0006, 2019 WL 1873428 (Tex. Apr. 26, 2019). To secure an award of attorney's fees from an opponent, the prevailing party must prove that: (1) recovery of fees is legally authorized, and (2) the requested fees are reasonable and necessary, so that the award will compensate the prevailing party generally for its losses resulting from the litigation process. Id. at *11.
"[T]he lodestar method . . . applies for determining the reasonableness and necessity of attorney's fees in a fee-shifting situation." Id. at *22 (citing El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012)). This method involves a two-step inquiry in determining what constitutes a reasonable attorney's fee. Id. First, the fact-finder "'must determine the reasonable hours spent by counsel in the case and a reasonable hourly rate for such work.'" Id. (quoting El Apple, 370 S.W.3d at 760). The fact-finder "'then multiplies the number of such hours by the applicable rate, the product of which is the base fee or lodestar.'" Id. (quoting El Apple, 370 S.W.3d at 760). The claimant bears the burden of proving the reasonable hours worked and the reasonable hourly rate. Id. at *20.
Although not required, "billing records are strongly encouraged to prove the reasonableness and necessity of requested fees when those elements are contested." Id. at *23 (emphasis in original).
The fact-finder "'may then adjust the base lodestar up or down (apply a multiplier) if relevant factors indicate an adjustment is necessary to reach a reasonable fee in the case.'" Id. at *22 (quoting El Apple, 370 S.W.3d at 760). However, the base calculation is presumed to reflect the reasonable and necessary attorney's fees, and considerations already incorporated into this calculation may not be used to rebut this presumption. Id. The claimant who seeks an upward adjustment must produce "specific evidence" showing the necessity of same, and the opponent who seeks a downward adjustment must produce "specific evidence to overcome the presumptive reasonableness of the lodestar figure." Id. at *21.
Such factors are:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;Id. at *16 (quoting Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997), in turn, quoting TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A (TEX. STATE BAR R. art. X, § 9)).
(2) the likelihood . . . that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.
A. Procedural Issues
Turning to the merits of this appeal, we first consider two arguments raised by appellants that do not neatly fit within their seven issues. We will construe these arguments as included in appellants' second issue, which contends that they "were denied their right to trial by jury." See TEX. R. APP. P. 38.1(f) ("The statement of an issue or point will be treated as covering every subsidiary question that is fairly included."); id. R. 38.9 (stating that "substantial compliance" with Rule 38 is sufficient); Dallas Cty. v. Crestview Corners Car Wash, 370 S.W.3d 25, 57 (Tex. App.—Dallas 2012, pet. denied) ("We look to the issues and the arguments and authorities in appellant's brief to determine the grounds presented for appellate review and will consider all issues fairly raised.").
First, appellants refer to the statement in C & J Gray's amended motion for partial summary judgment that such motion "is providing additional evidence of the segregation of fees for work that is recoverable under the [DJA] and for work that is not." Based on this statement, appellants urge that C & J Gray used "the wrong procedure" on remand because it did not file a "new" summary-judgment motion with "new" evidence. To the contrary, C & J Gray's amended motion superseded its original motion, Gibson v. Park Cities Ford, Ltd., 174 S.W.3d 930, 932 (Tex. App.—Dallas 2005, no pet.), and was therefore "new."
Second, appellants contend that the amended motion's request that "the Court . . . determine the amount of reasonable attorney's fees that [C & J Gray] is entitled to recover under the [DJA]" is not a statement of the "specific grounds therefore," as is required by Rule 166a(c) of the Texas Rules of Civil Procedure. TEX. R. CIV. P. 166a(c). We conclude that the foregoing request by C & J Gray was sufficient to comply with the rule.
We overrule appellants' second issue to the extent it is based on the foregoing procedural arguments.
B. Legal Authority for Fee Award
Appellants' third issue contends that "[a] declaratory judgment decreeing title will not support an award of attorney's fees." As support, appellants rely on authority holding that "when the trespass-to-try-title statute governs the parties' substantive claims . . . [the plaintiff] may not proceed alternatively under the Declaratory Judgments Act to recover [its] attorney's fees." Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 926 (Tex. 2013) (citation and internal quotation marks omitted). Appellants also made this argument in Fuhrmann II, in which they claimed that C & J Gray was required to bring a claim for trespass to try title or to quiet title, rather than a claim for declaratory relief, and thus it failed to show it was entitled to recover attorney's fees. See 2016 WL 7217252 at *10. We noted that appellants did not raise this argument until their motion for new trial, which they filed after the district court granted C & J Gray's summary-judgment motion. Id. Under this circumstance, we held that the court could properly consider, and award, C & J Gray attorney's fees under the DJA. Id. Although we reversed the fee award on the basis that C & J Gray's summary-judgment evidence did not conclusively establish the amount of fees incurred or that such fees were reasonable and necessary, the scope of our remand was limited to these particular issues, as opposed to whether C & J Gray's attorney's fees were recoverable under the DJA. See id. at *11-12 ("We . . . remand the cause to the trial court for further proceedings consistent with this opinion."). The limited scope of our remand in Furhmann II is dispositive of appellants' third issue in this appeal. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) ("When this court remands a case and limits a subsequent trial to a particular issue, the trial court is restricted to a determination of that particular issue."). Accordingly, we overrule this issue.
Consistent with our opinion in Fuhrmann II, our mandate in that case "REMAND[ED] this cause to the trial court for further proceedings consistent with the Court's opinion."
See also Cruz v. Schell, Beene & Vaughn, L.L.P., No. 05-01-00565-CV, 2012 WL 3194074, at *1 (Tex. App.—Dallas Aug. 7, 2012, pet. denied) (mem. op.) ("On remand, the trial court had no jurisdiction to consider issues already addressed by the court of appeals and not included in the scope of the remand as stated in the mandate."); Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 144 (Tex. App.—Dallas 2011, no pet.) ("When an appellate court remands a case with specific instructions, the trial court is limited to complying with the instructions and cannot re-litigate issues controverted at the former trial."); cf. Gotham Ins. Co. v. Warren E & P, Inc., 455 S.W.3d 558, 562 n.8 (Tex. 2014) ("Under the law of the case doctrine, a court of appeals is ordinarily bound by its initial decision if there is a subsequent appeal in the same case.").
C. Evaluation of Summary-Judgment Evidence
Appellants' first issue contends that "[t]he necessity and dollar amount of the summary judgment were disputed material fact questions" According to appellants' fourth issue, C & J Gray's "summary judgment is not supported by conclusive evidence," and their seventh issue urges that Pelley's "self-serving affidavit cannot provide sufficient evidence to support a traditional summary judgment because reasonable minds could differ." Moreover, appellants' sixth issue complains that C & J Gray "has still not segregated the fees as required by law." Finally, as noted previously, and presumably based on the foregoing deficiencies, appellants' second issue argues that they "were denied their right to trial by jury."
In any proceeding under the DJA, "the court may award costs and reasonable and necessary attorney's fees as are equitable and just." TEX. CIV. PRAC. & REM. CODE ANN. § 37.009. The DJA "entrusts attorney fee awards to the trial court's sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law." Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). An award of attorney's fees in a summary judgment is improper unless the evidence of the reasonableness of the fees is uncontroverted and the amount of the fees is conclusively established. Fuhrmann II, 2016 WL 7217252, at *11.
As the traditional summary-judgment movant, C & J Gray bore the burden of providing such evidence. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) ("To prevail on a traditional summary-judgment motion, a movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law." (citing TEX. R. CIV. P. 166a(c))). It could meet this burden through the uncontroverted affidavit of an attorney "setting forth the attorney's qualifications, opinion regarding reasonable attorney's fees, and the basis for the opinion." Microlaser Therapy Corp. v. White, No. 05-17-00761-CV, 2018 WL 6845242, at *6 (Tex. App.—Dallas Nov. 26, 2018, pet. denied) (mem. op.).
See also Lawyers Title Co. v. J.G. Cooper Dev., Inc., 424 S.W.3d 713, 717 (Tex. App.—Dallas 2014, pet. denied) ("To win summary judgment on its own cause of action, a plaintiff must establish each essential element of its claim as a matter of law.").
C & J Gray was also required to segregate its attorney's fees that relate solely to a claim for which such fees are unrecoverable. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006). However, to the extent C & J's attorney's fees were for "discrete legal services" that "advance[d] both a recoverable and unrecoverable claim," such services were "so intertwined" that no segregation is required with respect to the fees for those services. Id. at 313-14.
1. Pelley's affidavit
Pelley describes his qualifications to opine regarding C & J Gray's fees, including his over forty years of experience as a lawyer in Texas, his Masters of Law (LLM) degree in taxation, and his Board Certification by the Texas Board of Legal Specialization in Estate Planning and Probate Law. Consistent with the lodestar method, Pelley states that, as of the date of his affidavit (November 30, 2017), he had spent approximately 307.7 hours on the case. Pelley's affidavit also sets forth his rate of $300 per hour, which C & J Gray agreed to pay. According to Pelley, the foregoing figures, when multiplied, equate to a fee of $92,309, plus court costs and expenses of $1,219.79, for a total of $93,528.79. He avers that such fees are customarily charged in the area for the same or similar services for an attorney with his experience, reputation, and ability, considering the amount of and the type of controversy, the time limitations imposed, the results obtained, and the nature and length of his relationship with C & J Gray.
Pelley avers that the "uniqueness" of the issues and the "difficulty" and "complexity" of the case necessitated the 307.7 hours worked. He also states that his retention in the case precluded him from accepting other employment.
The fact that Pelley's hourly rate was agreed to by C & J Gray is not itself evidence that such rate was reasonable and necessary. See Rohrmoos, 2019 WL 1873428, at *11 ("[A] client's agreement to a certain fee arrangement or obligation to pay a particular amount does not necessarily establish that fee as reasonable and necessary.").
Pelley also subdivides the foregoing fees into those incurred before June 5, 2015, the date of C & J Gray's prior motion for partial summary judgment, and those incurred after such date. He avers that the pre- and post-June 5 fees "were reasonable and necessary fees incurred in both the prosecution and the defense of the declaratory judgment actions," and the post-June 5 fees were also incurred "in response to the appeal by the [appellants] of the Trial Court's decisions concerning the same." Pelley's affidavit also notes an exception to the foregoing averments with respect to $5,100 in pre-June 5 fees "which were segregated, allocated, and related to the trespass to try title and slander of title claims." He calculates that, upon deducting the $5,100 in unrecoverable fees, C & J Gray's reasonable and necessary attorney's fees incurred in the prosecution and defense of the declaratory judgment claims total $87,209, exclusive of the foregoing costs and expenses of $1,219.79. In addition, Pelley categorizes the nature of the work that he performed and attaches partially redacted billing entries that describe such work in more detail. Finally, he opines regarding the reasonable and necessary amount of C & J Gray's attorney's fees in the event of an appeal by appellants in the declaratory judgment actions. Namely, he estimates fees of $15,000 in the event of an appeal to this Court and $10,000 in the event of an appeal to the Texas Supreme Court.
According to the affidavit, such work consisted of (i) "investigating claims," (ii) "drafting pleadings, questions, and responses," (iii) "engaging in discovery," (iv) "attending hearings," (v) "responding to appeals by the [appellants]," and (vi) "taking other necessary actions to perform my legal services properly."
The billing entries also include four entries that correspond with the $5,100 in unrecoverable fees that C & J Gray deducted from its fee request.
We must review Pelley's testimony "in the light most favorable to [appellants], crediting evidence a reasonable jury could credit and disregarding contrary evidence and inferences unless a reasonable jury could not." Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018) (citations and internal quotation marks omitted). In other words, the foregoing testimony "is taken as true as a matter of law if [it] is not contradicted by any other witness and is clear, positive, direct, and free from contradiction." Top Cat Ready Mix, LLC v. Alliance Trucking, L.P., No. 05-18-00175-CV, 2019 WL 275880, at *6 (Tex. App.—Dallas Jan. 22, 2019, no pet.) (mem. op.) (citation and internal quotation marks omitted); see also TEX. R. CIV. P. 166a(c) (providing that summary judgment may be based on uncontroverted testimony of expert witness "if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted").
The factual averments in Pelley's affidavit—specifically, the number of hours that he worked, the nature of the work performed, Pelley's hourly rate, and the segregation of recoverable and unrecoverable fees—are clear, positive and direct, and they could have been readily controverted. See TEX. R. CIV. P. 166a(c); Top Cat, 2019 WL 275880, at *6; Microlaser Therapy, 2018 WL 6845242, at *6. We will take these facts as true if they are not contradicted by another witness. Top Cat, 2019 WL 275880, at *6; Microlaser Therapy, 2018 WL 6845242, at *6; see also Rohrmoos, 2019 WL 1873428, at *20 (noting that sufficient evidence of fees includes, at a minimum, evidence of (i) "particular services performed," (ii) "who performed those services," (iii) "approximately when the services were performed," (iv) "the reasonable amount of time required to perform the services," and (v) "the reasonable hourly rate for each person performing such services"). These facts were also the basis of Pelley's opinion testimony regarding the reasonableness and necessity of his fees. We conclude that the foregoing evidence is sufficient to support summary judgment, if uncontroverted. See Top Cat, 2019 WL 275880, at *6; Microlaser Therapy, 2018 WL 6845242, at *6.
The district court's fee award in this case did not adjust C & J Gray's base fee calculation up or down, nor do appellants urge the absence of such an adjustment as a ground for reversal of the court' summary judgment order. Accordingly, we need not consider the second step of the two-step inquiry articulated in Rohrmoos. See 2019 WL 1873428, at *21-22.
2. Kelsey's affidavit
We next consider whether the affidavit of appellants' counsel, Kelsey, controverted Pelley's, thereby raising a genuine issue of material fact. See Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623, 626 (Tex. App.—Houston [14th Dist.] 1979, writ ref'd n.r.e.) (noting that opinion of expert witness may be used by a non-movant to raise fact issues that preclude summary judgment). "The relevant standard for an expert's affidavit opposing a motion for summary judgment is whether it presents some probative evidence of the facts at issue." Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam).
Kelsey avers that he has served as appellants' lead counsel in this case since approximately December 2013. As such, he is "aware of the pleadings and motions and all other activities." In Kelsey's view, C & J Gray "failed to meet the standards to recover attorney's fees against [appellants]." He bases this opinion on six grounds:
(1) "This case was originally filed against another Defendant [i.e., Speir Investments]. These Defendants [i.e. appellants] were added later."
(2) "That Defendant [Speir Investments] was left in the case until after the trial court judgment in this case was rendered and entered."
(3) "It is obvious from the billing attached to . . . Pelley's affidavit that no separate billing was made to differentiate work done on claims against the other Defendant [Speir Investments]."
(4) "Pelley's billing is as to the whole case only."
(5) C & J Gray "claimed damages against the other Defendant [Speir Investments] for slander of title. No such claim was ever made against these Defendants [appellants]."
(6) C & J Gray "could have and should have segregated the work done among the various claims against the various defendants but did not do so."
The foregoing averments are similar to arguments that appellants raised in Furhmann II. Construing C & J Gray's pleadings liberally, as we were required to do in the absence of a special exception, we rejected appellants' contention that C & J Gray's request for declaratory relief and its slander of title claim in its original petition did not assert a claim against appellants. 2016 WL 7217252, at *10. We concluded that C & J Gray "alleged there was a dispute between it and appellants over the ownership of the mineral estate, sought a declaration that it owned the mineral estate, and requested an award of attorney's fees from all the defendants, including appellants." Id. (emphases added).
In light of our holding in Furhmann II, we conclude that C & J Gray was required only to segregate its fees between its recoverable and unrecoverable claims, which it did, as opposed to performing a segregation analysis specific to Speir Investments. We conclude that Kelsey's other averments—that Pelley billed as to the whole case and did not segregate the work done among its various claims— are conclusory and are insufficient to raise a genuine issue of material fact. See Ryland Group, 924 S.W.2d at 122 (noting that "[c]onclusory affidavits are not enough to raise fact issues" and "are not credible, nor susceptible to being readily controverted" (citing, inter alia, TEX. R. CIV. P. 166a(c))). We likewise conclude that Kelsey does not raise a fact issue by averring that Pelley "fails to conclusively show that the attorney's fees requested are reasonable and necessary." See Deer Creek Ltd. v. N. Am. Mortg. Co., 792 S.W.2d 198, 202 (Tex. App.—Dallas 1990, no writ) (noting that "[s]tatements of opinions and conclusions made in an affidavit are not competent summary judgment proof"); Fulenwider v. City of Teague, 680 S.W.2d 582, 584 (Tex. App.—Waco 1984, no writ) (holding that unilateral subjective determinations by surveyor were conclusions and thus were not competent summary-judgment evidence). For each of these reasons, Kelsey's affidavit did not controvert the facts set forth in Pelley's affidavit. We overrule appellants' first, second, fourth, sixth, and seventh issues.
Although C & J Gray did not object to this defect in the trial court, "[a] contention that an affidavit is conclusory raises a defect of substance and may be raised for the first time on appeal." Hill v. Hill, 460 S.W.3d 751, 757 (Tex. App.—Dallas 2015, pet. denied).
As support for their contention that Kelsey's affidavit raised genuine issues of material fact, appellants rely on the Texas Supreme Court's holding in Christy v. Stauffer Publications, Inc. that a non-movant's affidavit presented an ultimate issue of fact, thereby precluding summary judgment. 437 S.W.2d 814, 815 (Tex. 1969). Christy was a libel case that arose from a television newscast. Id. at 814-15. The plaintiff/non-movant offered the affidavit of a viewer who averred that the defendant newscaster had referred to the plaintiff as "the bandit" who robbed a grocery store. Id. at 815. The Supreme Court assumed the truth of this sworn statement and concluded that it raised a genuine issue of material fact as to whether the newscaster committed slander or libel per se. Id. at 815. Unlike the factual averment in Christy, Kelsey's affidavit contains conclusions and therefore is incompetent summary-judgment evidence. See Ryland Group, 924 S.W.2d at 122; Deer Creek, 792 S.W.2d at 202; Fulenwider, 680 S.W.2d at 584.
D. Allocation of Appellate Attorney's Fees
As noted previously, this Court in Fuhrmann II reversed the district court's summary judgment awarding attorney's fees to C & J Gray, though we affirmed the court's judgment in all other respects. 2016 WL 7217252, at *1, *12. Appellants urge that appellate attorney fees can only be awarded if the appellee prevails. As support, they cite authority holding a trial court's award of conditional appellate attorney's fees "is essentially an award of fees that have not yet been incurred" and may not be recovered unless and until the appeal is resolved in favor of the party to whom such fees were awarded. Ventling v. Johnson, 466 S.W.3d 143, 156 (Tex. 2015); see also Robinwood Bldg. & Dev. Co. v. Pettigrew, 737 S.W.2d 110, 112 (Tex. App.—Tyler 1987, no writ) (implying such a condition to a judgment that did not expressly include it). Based on this principle, appellants' fifth issue complains that C & J Gray's summary-judgment evidence did not allocate its attorney's fees according to whether such fees were incurred in defending the portion of the district court's judgment that was ultimately affirmed, as opposed to the fees incurred in defending the portion of the judgment that ended up being reversed.
In contrast to a conditional award of appellate fees, appellants challenge the district court's award, following our remand, of attorney's fees that C & J Gray incurred in the prior appeal of the district court's judgment. The statutory authority for the court's award of these fees, section 37.009 of the Civil Practice and Remedies Code, contains no "prevailing party" language. See CIV. PRAC. & REM. § 37.009 ("[T]he court may award costs and reasonable and necessary attorney's fees as are equitable and just."); cf. Lindley v. McKnight, 349 S.W.3d 113, 136-37 (Tex. App.—Fort Worth 2011, no pet.) (holding that trial court acted within its discretion by awarding attorney's fees to defendants for a service by their attorney that was incidental to their defense of plaintiff's DJA claim, even if such service did not directly affect ultimate resolution of claim); Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 314 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) ("[I]t is well established that attorney's fees under section 37.009 are not conditioned upon a party's prevailing on its own declaratory claim."). Accordingly, the allocation that appellants seek was not required. We overrule their fifth issue.
CONCLUSION
We affirm the district court's judgment.
/Bill Pedersen, III/
BILL PEDERSEN, III
JUSTICE 180683F.P05
JUDGMENT
On Appeal from the 59th Judicial District Court, Grayson County, Texas
Trial Court Cause No. CV-13-0203.
Opinion delivered by Justice Pedersen, III. Justices Whitehill and Partida-Kipness participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee C & J GRAY INVESTMENT PARTNERS, LTD. recover its costs of this appeal from appellants TODD M. FUHRMANN, BRIDGETTE KIRKPATRICK, KAREN E. DERRICK, AND MELVIN MCDANIEL. Judgment entered this 13th day of August, 2019.