Opinion
No. 05-04-00876-CV
Opinion issued July 13, 2005.
On Appeal from the 256th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 04-06954-Z.
Affirmed.
Before Justices BRIDGES, RICHTER, and LANG.
MEMORANDUM OPINION
Randall Flippin, the petitioner in a divorce action, appeals the summary judgment ordering him to pay the attorney's fees of John Hamilton for his legal representation of the respondent in the divorce. In two issues, Flippin asserts that the summary judgment should be reversed because the evidence is insufficient to support the summary judgment award. We affirm the trial court's judgment.
Flippin filed for divorce, and his wife, Katalin Flippin, was represented for a time by John Hamilton. However, prior to the conclusion of the divorce, Hamilton filed a petition in intervention for $17,957.50 for his attorney fees. Thereafter, he filed a motion for summary judgment. As evidence, Hamilton submitted in support of his motion for summary judgment a one page affidavit. His one page affidavit stated that he was the intervenor in the cause, that he was attorney of record for Katalin Flippin until his motion to withdraw was granted, and that $1,750 was a reasonable fee in the event of appeal. He ended his affidavit by incorporating the facts in his summary judgment motion into his summary judgment evidence. Under oath in his affidavit, he stated, "The facts set forth in the Intervenor's Motion for Summary Judgment are within my knowledge and true and correct."
The trial court granted the motion for summary judgment and ordered Flippin, individually, to pay the $17,957.50, plus interest to Hamilton. Subsequently, Hamilton's motion to sever the summary judgment was granted, and the summary judgment became final. Flippin filed a notice of appeal. Katalin Flippin is not a party to this appeal.
A movant for summary judgment must establish he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). Even if the motion for summary judgment is uncontroverted, the movant must still carry the burden of proof. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). When the movant does not meet his burden of proof, the burden does not shift to the non-movant. Clear Creek, 589 S.W.2d at 678.
In his first issue, Flippin asserts that only the one page affidavit is Hamilton's summary judgment evidence and that it contains no evidence he owes money to Hamilton. We disagree. Under oath in his affidavit, Hamilton incorporated the facts of the motion for summary judgment into his summary judgment evidence. In his motion, Hamilton stated that: (1) he began representing Katalin Flippin on April 17, 2003, (2) Randall Flippin and Katalin Flippin were jointly and severally liable for the legal services, (3) the legal services were necessities furnished and provided to Katalin Flippin and the marital estate, (4) the total amount of the legal fees and expenses for the period ending January 29, 2004 was $17,957.50, (5) the total amount of $17,957.50 included $107.50 in expenses and 102 hours of time charged at the rate of $175 per hour, and (6) such fees were reasonable and necessary. Such information was before the trial court for its consideration as summary judgment evidence. We overrule Flippin's first issue.
In his second issue, Flippin asserts that, even if the trial court considered the information in the summary judgment motion as evidence, such evidence does not meet the "interested witness standard" of civil procedure rule 166a(c) because the information only consisted of conclusory statements regarding the total amount alleged owed to Hamilton.
Rule 166a(c) provides in relevant part:
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.
As the trial attorney, Hamilton was qualified to provide testimony about his own legal work and testify that the work was reasonable and necessary. See Goad v. Goad, 768 S.W.2d 356, 359 (Tex.App.-Texarkana 1989, writ denied); Cantu v. Moore, 90 S.W.3d 821, 825-26 (Tex.App.-San Antonio 2002, pet. denied). He provided a breakdown regarding the number of hours worked, his rate per hour, the period during which the work was performed, and his amount of expenses incurred during that work period. He provided the information necessary to calculate reasonable attorney fees. See Guity v. C.C.I. Enterprise, Co., 54 S.W.3d 526, 528-29 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Hamilton provided more than a conclusory statement about his legal fees, and he met his burden of proof on his motion for summary judgment. Flippin points to no evidence in the record where he controverted Hamilton's testimony about the attorney fees before the trial court. We overrule Flippin's second issue. We affirm the judgment of the trial court.