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dismissing as moot an appeal from a sanctions order previously vacated by the trial court
Summary of this case from Betts v. DayOpinion
No. 05-07-01289-CV
Opinion Filed January 6, 2010.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-54606-03.
Before Justices FITZGERALD, MURPHY, and MYERS.
MEMORANDUM OPINION
The only issue remaining in this consolidated appeal and mandamus proceeding is the award of attorney's fees to Mother as part of an order in suit to modify parent-child relationship. Father contends the evidence is legally and factually insufficient to support the award and further challenges the characterization of the fees as child support. We conclude the fees were improperly characterized as child support and modify the order to delete that reference. As modified, we affirm the order.
BACKGROUND
This consolidated proceeding began as Father's appeal of two June 25, 2007 trial court orders. Father challenged the first order sanctioning him and his counsel for filing a "groundless" and "frivolous" motion to modify child support; he also challenged the second order in suit to modify parent-child relationship that awarded Mother $14,500 in attorney's fees. Father's counsel C. "Luke" Gunnstaks also appealed the sanctions order and additionally challenged the order by petition for writ of mandamus. Following these filings, the trial court vacated the sanctions order, rendering Gunnstaks's and Father's challenges to that order moot. Thus, the sole issue before this Court is Father's challenges to the attorney's fee award.
LEGAL STANDARD
We review an attorney's fee award for an abuse of discretion. In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.-Dallas 2009, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to any guiding principles. Id. Under this standard, we consider whether the court (1) had sufficient evidence upon which to exercise its discretion and (2) erred in its exercise of that discretion; legal and factual sufficiency challenges are not independent grounds of error. Id.
ATTORNEY'S FEES
Section 106.002 of the Texas Family Code authorizes a trial court to award attorney's fees in a suit affecting the parent-child relationship upon proof of the amount, reasonableness, and necessity. Tex. Fam. Code Ann. § 106.002 (Vernon 2008) (authorizing award); Wagner v. Edlund, 229 S.W.3d 870, 875 (Tex. App.-Dallas 2007, pet. denied) (burden of proof). The reasonableness and necessity of the fees is a fact question. Diamond v. Soucie, 239 S.W.3d 428, 431 (Tex. App.-Dallas 2007, no pet.). Factors to guide a trial court in determining whether the fees are reasonable and necessary include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly; (2) the likelihood the acceptance of the particular employment will preclude other employment; (3) the customary fees 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 the circumstances; (6) the nature and length of the professional relationship; (7) the experience, reputation, and ability of the lawyer 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. Arthur Andersen Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (citing Tex. Disciplinary R. Prof'l. Conduct 1.04(b), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon Supp. 2009) (Tex. State Bar R. art. X, § 9)); Diamond, 239 S.W.3d at 431. The court need not receive evidence on each of these factors, but may look at the entire record, the evidence presented on reasonableness, the common knowledge of the participants as lawyers and judges, and the relative success of the parties. In re A.B.P., 291 S.W.3d at 98. Clear, direct, uncontroverted evidence of fees will be taken as true as a matter of law when such evidence is reasonable and credible and where the opposing party had the means and opportunity to disprove the testimony but failed to do so. See Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547-48 (Tex. 2009) (citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990)).
The evidence Mother presented at trial on the issue of attorney's fees consisted of the following testimony by her counsel:
I am an attorney licensed to practice law in the state of Texas, and I'm also a board certified specialist in family law, as recognized by the State Bar of Texas. I represent [Mother] in this action and I've represented her throughout the time that this motion to modify was filed.
Reasonable and necessary attorneys' fees that have been incurred by our firm in that representation are currently $14,500, not including any expenses that would be incurred for the preparation of any order or any appeal. In the event of an appeal, we would ask the court to order an additional $15,000 in attorneys' fees for any appeal to the Court of Appeals, and an additional $5,000 in attorneys' fees if the appeal is taken up to the Supreme Court of Texas. I pass myself as a witness.
Father argues this evidence is legally and factually insufficient because it did not include "evidence of the time spent by the attorney, the nature of his preparation, the complexity of the case, the attorney's experience, or his prevailing hourly rate." Father did not, however, cross-examine counsel, challenge the amount of fees, or otherwise present any evidence refuting the amount or reasonableness and necessity of the fees, despite having an opportunity to do so. Moreover, nothing in the record shows Mother's counsel's testimony was not credible or reasonable. The trial judge had the entire record, which included Father's own testimony that he "thought" he owed his own counsel "about 30,000 . . . for this lawsuit." The trial judge had also presided over the entire course of the proceeding as well as previous proceedings involving the same parties and counsel and knew of counsel's abilities. Based on the record, the court's knowledge and experience, and Mother's counsel's uncontroverted testimony, we conclude the trial court had sufficient evidence upon which to award fees and did not abuse its discretion in rendering the award. See, e.g., In re A.B.P., 291 S.W.3d at 99 (counsel's testimony uncontroverted and not otherwise challenged); In re H.S.N., 69 S.W.3d 829, 835 (Tex. App.-Corpus Christi 2002, no pet.) (counsel testified to familiarity with fees, half of practice was family, and he believed fees were reasonable and necessary). To the extent Father complains of the sufficiency of the evidence to support the award of fees, we resolve the issue against him.
To the extent Father challenges the characterization of the fees as child support, Mother concedes, and we agree, the fees could not be characterized as child support because they were awarded as part of a modification suit and not on a motion to enforce delinquent child support. See Naguib v. Naguib, 183 S.W.3d 546, 548 (Tex. App.-Dallas 2006, no pet.) (no basis to characterize award of attorney's fees as child support where incurred in suit to modify parent-child relationship and not suit to enforce delinquent child support). Accordingly, we resolve Father's issue as to characterization of the fees in his favor.
CONCLUSION
Because the sanctions order described above has been vacated, we dismiss as moot Gunnstaks's mandamus petition and appeal. We also overrule as moot Father's issues in his appeal concerning the sanctions order. We modify that portion of the "order in suit to modify parent-child relationship" characterizing the fees as child support by deleting such characterization and, as modified, affirm that order.