Opinion
No. 04-06-00350-CV.
Delivered and Filed: January 19, 2007.
From the County Court at Law No. 5, Bexar County, Texas Trial Court No. 302964 Honorable David J. Rodriguez, Judge Presiding.
Testarossa Motors Inc. appeals the trial court's award of $12,000 in attorney's fees to John Tinsley. We affirm the trial court's judgment.
Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
Background
Tinsley, a motor vehicle dealer, sold two vehicles for a sum of $47,400 to Testarossa, also a motor vehicle dealer. Between the date of the lawsuit's inception to the date of the judgment on March 9, 2006, Testarossa made irregular periodic payments but did not pay in full. At trial, Tinsley claimed that Testarossa was given due notice of Tinsley's claim for payment through his attorney in early January, 2006 and while Testarossa did make some payments, Testarossa failed to pay the balance in full and still owed him $13,000. Tinsley's counsel, Michael Black, also testified at trial. He stated that based upon the original $47,400 due in this case, the sum of $12,000 was a reasonable and proper fee for all of the work he completed prior to the date of the trial. Testarossa's counsel, Arno Schwamkrug, was absent from the trial and later claimed at the motion for new trial hearing that he had no notice of the original trial.
At the motion for new trial hearing, Testarossa's counsel testified that his client was never presented with a demand by Tinsley as required by section 38.002 of the Civil Practice and Remedies Code. He thus argued that because no presentment was made, Tinsley was not entitled to attorney's fees. Testarossa's counsel also urged that the attorney's fees awarded were unreasonable. He argued that since the judgment was for $13,000, Tinsley's counsel could not base his attorney's fees on the $47,400 originally due.
On appeal, Testarossa argues that Tinsley did not comply with the rule on presentment. He also argues that the $12,000 award for attorney's fees was unreasonable, clearly excessive, and not of a standard acceptable in Bexar County, Texas based on the amount of work Tinsley's counsel completed.
Standard of Review
A reviewing court will not overturn a trial court's award of attorney's fees unless it constitutes a clear abuse of discretion. Lancer Corp. v. Murillo, 909 S.W.2d 122, 125-25 (Tex.App.-San Antonio 1995, no writ). "The test for whether the trial court abused its discretion is whether it acted without reference to any guiding rules and principles, that is, whether the court's action was arbitrary and unreasonable." Id. In deciding whether the trial court acted arbitrarily, we may review the trial court's findings for legal and factual sufficiency of the evidence. Id.
Discussion
Proper Presentment
As set forth in section 38.002 of the Civil Practices and Remedies Code, to recover attorney's fees for a breach of contract claim: (1) a claimant must be represented by an attorney; (2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented. Tex. Civ. Prac. Rem. Code Ann. § 38.002 (Vernon 1997). The purpose of the presentment requirement is to allow the person against whom it is asserted an opportunity to pay the claim within thirty days after notice without incurring an obligation for attorney's fees. See Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981). Texas courts have found various forms of presentment to be sufficient to support an award of attorney's fees, such as oral and written demands for admissions and responses thereto. See Jones, 614 S.W.2d at 100. In breach of contracts cases, the presentment requirement can be met when a plaintiff presents the contract claim to the opposing party and that party fails to tender performance. Chandler v. Mastercraft Dental Corp. of Tex., Inc., 739 S.W.2d 460, 470 (Tex.App.-Fort Worth 1987, writ denied) ( citing Jones, 614 S.W.2d at 100).
Testarossa argues that Tinsley never presented a demand for the money as required by section 38.002 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. § 38.002 (Vernon 1997). However, a demand letter is not the only way to satisfy the presentment requirement. Jones, 614 S.W.2d at 100 (acknowledging that no form of presentment is required under section 38.002). When the defendant argues that no formal written demand letter exists, courts must examine the facts and determine whether the claim was adequately presented. Venture Projects, Inc. v. Morrison, No. 03-98-00080-CV, 1999 WL 125446 (Tex.App.-Austin March 11, 1999, no pet.) (mem. op.). Here, Tinsley testified that he gave notice of his claim more than sixty days before the trial in a letter dated January 4, 2006, which was sent to Testarossa's counsel by both fax and certified mail. Based on this testimony, we hold that the claim for attorney's fees was sufficiently presented for purposes of section 38.002. Tex. Civ. Prac. Rem. Code Ann. § 38.002 (Vernon 1997); see Panizo v. Young Men's Christian Ass'n, 938 S.W.2d 163, 168 (Tex.App.-Houston [1st Dist.] 1996, no writ) (holding that presentment is to be liberally construed).
Reasonableness
Testarossa argues that the court's award of $12,000 in attorney's fees was unreasonable, clearly excessive, and not of a standard acceptable in Bexar County, Texas. "[R]easonableness of attorney's fees is a question of fact to be determined by the trier of the facts and must be supported by competent evidence." In the Interest of T.L.K., a Child, 90 S.W.3d 833, 840 (Tex.App.-San Antonio 2002, no pet.) ( citing Peeples v. Peeples, 562 S.W.2d 503, 506 (Tex.Civ.App.-San Antonio, 1976, no writ)). The trial court may award those fees that are "reasonable and necessary" for the prosecution of the suit and the plaintiff must show that the fees were incurred while suing the defendant on a claim which allows recovery of such fees. Doncaster v. Hernaiz, 161 S.W.3d 594, 606 (Tex.App.-San Antonio 2005, no pet.). The trial court determines the reasonableness of the attorney's fees awarded with the benefit of evidence and by referring to the factors provided in Rule 1.04 of the Texas Disciplinary Rules of Professional Conduct. In the Interest of T.L.K., 90 S.W.3d at 841; Doncaster, 161 S.W.3d at 606 ( citing Tex. Disciplinary R. Prof'l Conduct 1.04(b), reprinted in Tex. Gov't Code Ann. Tit. 2, Subtit. G, App. A, art. 10 § 9 (Vernon 2005)) (factors include, among others, time and labor required, difficulty of the questions involved and skill necessary to perform the services, fee customarily charged in the locality, and any time limitations imposed by the circumstances). The decision to grant or deny attorney's fees is within the trial court's sound discretion, which will not be overturned absent a clear abuse of discretion. Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). In reviewing an attorney's fee award, the appellate court may draw upon the common knowledge of the justices and their experience in support of the fee awarded. Doncaster, 161 S.W.3d at 606.
It is undisputed that recovery of attorney's fees is available in this contract case under Civil Practice and Remedies Code § 38.001(8). Tex. Civ. Prac. Rem. Code Ann. § 38.001(8) (Vernon 1997) (providing for recovery of attorney's fees from an individual in a claim based on an oral or written contract).
At trial, Tinsley's attorney, Michael Black, testified that based on his experience and training in the State of Texas, $12,000 in attorney's fees was proper for his work in the proceedings prior to the trial based on the original $47,400 due to Tinsley. The trial court heard the evidence of attorney's fees during the trial and was entitled to make its award based on that testimony. See Allstate Ins. Co. v. Lincoln, 976 S.W.2d 873, 877 (Tex.App.-Waco 1998, no pet.). Accordingly, we conclude the trial court did not abuse its discretion in awarding Tinsley $12,000 in attorney's fees.
Conclusion
Based on the foregoing, the judgment of the trial court is affirmed.