Opinion
No. 05-02-00643-CV.
Opinion filed April 3, 2003.
On Appeal from the County Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. 00-03320-e
REVERSED and RENDERED.
Before Justices WHITTINGTON, RICHTER, and FRANCIS.
MEMORANDUM OPINION
A jury found in favor of appellant Medi Clinic on its $375 breach of contract claim against appellee John H. Allen III and awarded $9000 in attorneys' fees. The trial court, however, reduced the attorneys' fees to $3000, and Medi Clinic appealed. In two issues, it asserts the evidence on attorney's fees was legally and factually sufficient to support the jury's finding. For the reasons set forth below, we reverse the trial court's amended judgment reducing attorneys' fees and render judgment that Medi Clinic recover $9000 in attorneys' fees.
Allen is a personal injury lawyer whose client was injured in a car accident and was treated by Medi Clinic. Allen gave a letter of protection to Medi Clinic promising to pay reasonable medical expenses from any settlement or judgment. The medical bills totaled $375. The lawsuit ultimately settled, but Allen failed to pay Medi Clinic. When Medi Clinic learned the case had settled, it demanded payment of its bills under the letter of protection. Allen refused to pay.
Medi Clinic filed a pro se lawsuit in justice of the peace court, which rendered judgment in favor of Allen. Medi Clinic then appealed to the county court at law. While in county court, Medi Clinic hired a lawyer to prosecute the case. After a two-day trial before a visiting judge, the jury found: (1) Allen breached the letter of protection agreement; (2) damages of $619 (which included various sums of money expended by Medi Clinic in attempting to be paid on the bills); (3) Medi Clinic demanded payment of a "just amount" from Allen; (4) Allen failed to tender to Medi Clinic $375 within thirty days of Medi Clinic making its first request for payment; and (5) reasonable and necessary attorneys' fees of $9000.
Medi Clinic moved for entry of judgment on the verdict, but asked for only $375 in damages, the amount sought by the pleadings, as well as the $9000 in attorneys' fees. A final judgment was signed ordering Allen to pay $9375. Thereafter, Allen filed a motion to disregard the jury's answers, motion for new trial, and motion for remittitur. The motion for remittitur argued the attorneys' fees were "grossly excessive" and asked the trial court to order Medi Clinic to "file a remittitur in the amount $5,000.00, or face a new trial." In its response, Medi Clinic asserted that the trial court could not order a remittitur, but could only suggest a remittitur and condition it on a new trial. The trial judge granted Allen's motion, and in an amended final judgment, reduced the judgment to $3375 ($375 in contract damages and $3000 in attorneys' fees) without any condition of a new trial.
On appeal, Medi Clinic argues the trial court was without power to unilaterally reduce the amount of attorneys' fees when the evidence was legally and factually sufficient to support the jury's verdict. Before turning to the merits of the appeal, we address two preliminary matters.
First, the trial court's amended final judgment purports to grant Allen's "motion for judgment notwithstanding the verdict," but eliminated only a portion of, not all, the attorneys' fees. Thus, it is apparent the trial court did not find there was legally insufficient evidence of attorneys' fees; rather, it granted Allen's motion for remittitur, and it is the remittitur that we review.
Second, Allen argues Medi Clinic has not preserved its complaint for review because it failed to object to the amended final judgment. He argues Medi Clinic was required to inform the trial court that the remittitur had to be conditioned on the granting of a new trial. By not complaining once the amended judgment was signed, Allen asserts that the court was "deprived of the opportunity to correct the alleged error."
A motion for judgment on the verdict preserves error when the trial court renders judgment for the movant but for less than the verdict. See Emerson v. Tunnell, 793 S.W.2d 947, 947-48 (Tex. 1990) (motion for judgment on verdict preserves error when trial court renders judgment for movant but for less than verdict). In this case, Medi Clinic filed a motion for judgment on the verdict. Additionally, after the first judgment was signed, Allen filed his motion to disregard the jury's answers, motion for new trial, and motion for remittitur. In its response, Medi Clinic specifically stated the trial court could only suggest a remittitur on condition of a new trial. Thus, the trial court was aware that Medi Clinic opposed any unilateral reduction of attorneys' fees. Under these circumstances, we conclude the issue has been preserved for our review.
Turning to the merits of the appeal, we agree with Medi Clinic that the trial court had no power to order a remittitur in the amount of attorneys' fees found by the jury without conditioning that remittitur on a new trial. See Snoke v. Republic Underwriters Ins. Co., 770 S.W.2d 777 (Tex. 1989) (per curiam). In doing so, the trial court acted in excess of its authority. In reviewing the trial court's order of remittitur, the proper standard of review is factual sufficiency. Id. We examine all of the evidence in the record to determine whether sufficient evidence supports the award, upholding a remittitur only if some portion is so factually insufficient or so against the great weight and preponderance of the evidence as to be manifestly unjust. Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986) (per curiam). In reviewing the evidence, we must keep in mind it is the jury's role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses' testimony. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Medi Clinic's attorney, John Meazell, testified he had been licensed since 1994 and had spent 45.4 hours preparing for the trial of the case and eighteen hours in the trial of the case. His ordinary hourly rate was $175 per hour, which he said was customary for this type of case and was reasonable and necessary. He had incurred $10,900 in fees at the time he testified, but reduced his request to $9000. Meazell testified that during the course of the trial, he did not conduct written discovery so that he could keep down the costs. In explaining the time spent, he said he was required to research certain issues related to the appeal from JP court and had to do "copious amounts of legal research" to respond to Allen's motion for summary judgment. Allen offered no evidence to rebut Meazell's testimony.
In his brief, Allen argues the evidence is factually insufficient because the overwhelming evidence shows that he tendered a just amount and Medi Clinic failed to mitigate its damages. The evidence showed Medi Clinic demanded payment pursuant to the letter of protection, Allen refused to pay, and Medi Clinic sued in JP court. Medi Clinic did not hire a lawyer to represent its interest until the appeal to county court. Although the evidence is clear Allen did not tender or offer to pay the $375 before the JP suit was filed, the evidence is disputed as to the amount Allen eventually offered to pay to settle the county court case.
The jury was instructed not to include any amount that Medi Clinic "could have avoided by the exercise of reasonable care." Reviewing all the evidence presented, we cannot conclude the evidence supporting the jury's finding of $9000 in attorneys' fees is so against the great weight and preponderance of the evidence as to be manifestly unjust. Thus, the trial court erred in ordering a remittitur. We sustain Medi Clinic's second issue. Finally, we need not address Medi Clinic's first issue in which it contends the evidence was legally sufficient to support the jury's finding since we review remittitur orders for factual sufficiency.
When we sustain a contention that remittitur should not have been required, we must render the judgment the trial court should have rendered. See J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659, 666 (Tex.App.-Fort Worth 1999, pet. denied); see also Tex.R.App.P. 46.2. Accordingly, we reverse the trial court's judgment reducing the amount of attorneys' fees to $3000 and render judgment that Medi Clinic recover $9000 in attorneys' fees as found by the jury.