Baltasar D. Cruz v. James Van Sickle, Karl- Thomas Musselman
05-13-00191-CV
Tex. App.Jan 26, 2015Background
- Appellant Baltasar D. Cruz lost a 2012 primary and sued after an online article (Burnt Orange Report) stated he was "thrown out ... by the police" at an Elizabeth Edwards book signing; Cruz contends that statement is false.
- Article authored/posted by defendants James Van Sickle and Karl‑Thomas Musselman (d/b/a Burnt Orange Report); Katherine Haenschen edited the site.
- Defendants moved to dismiss under the Texas Citizens Participation Act (Ch. 27 TCPRC); the trial court granted dismissal and awarded defendants attorney’s fees under Sec. 27.009(a).
- At the March 14, 2013 hearing on fees, plaintiffs contend defendants relied on affidavits (notably one by Melissa Bellan) and invoices that were filed but not admitted into evidence; Van Sickle did not present testimony that he was liable for or had paid the claimed fees.
- Cruz objected repeatedly in the trial court to admission of fee evidence and to defendants’ failure to produce the written fee agreement; he argues the trial court nonetheless awarded fees without competent admissible proof.
- Cruz sought en banc reconsideration after the court of appeals issued an opinion (Dec. 3, 2014) affirming the award; Cruz raises (1) lack of evidence that Van Sickle "incurred" fees, (2) best‑evidence and discovery failures (no fee agreement produced), (3) preservation of objections and admissibility of filed but unadmitted affidavits, and (4) whether Sec. 27.009(a) mandates fee awards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of filed affidavits for attorney’s fees | Bellan’s affidavit was filed but never offered or admitted; filed affidavits must be introduced at the hearing to be evidence | Court of appeals held a filed affidavit may constitute "some evidence" without formal admission at the hearing | Court of appeals affirmed award, treating the filed affidavit as sufficient evidence (Cruz disputes this) |
| Whether Van Sickle "incurred" fees under Sec. 27.009(a)(1) | Invoices and affidavit do not state Van Sickle is liable or has been billed/paid; no evidence he incurred fees | Defendants relied on counsel’s affidavit/invoices to show fees and expenses were incurred | Court of appeals found sufficient proof that Van Sickle incurred fees; Cruz contends the affidavit lacks the necessary assertion of liability |
| Failure to produce attorney‑fee agreement / best‑evidence rule | Van Sickle’s counsel admitted a written fee agreement exists but defendants never produced it; under Rule 1002 and disclosure rules affidavit testimony is inadmissible without the agreement | Defendants did not need to attach the fee agreement to the affidavit or produce it to satisfy proof of fees | Trial court overruled objections; court of appeals accepted the fee proof—Cruz argues overruling was an abuse of discretion |
| Mandatory nature of Sec. 27.009(a) fee award | Award is not strictly mandatory; statutory language allows equitable discretion (per other courts) | Court of appeals treated Sec. 27.009(a) as requiring an award when dismissal is granted | Court of appeals treated award as mandatory; Cruz asks en banc review because other appellate authority reads the statute as discretionary |
Key Cases Cited
- American Heritage Capital, L.P. v. Gonzalez, 436 S.W.3d 865 (Tex. App.—Dallas 2014) (discusses what it means for a party to have "incurred" attorney’s fees)
- Alphonso v. Deshotel, 417 S.W.3d 194 (Tex. App.—El Paso 2013) (affidavit supporting attorney’s fees must be admitted into evidence at the hearing to constitute proof)
- Ford Motor Co. v. Castillo, 279 S.W.3d 656 (Tex. 2009) (denial of discovery that prevents evidence from appearing in the record is harmful)
- Gilbert v. City of El Paso, 327 S.W.3d 332 (Tex. App.—El Paso) (no evidence of appellate fees where affidavits and supporting documents were not admitted)
- Coward v. Gateway Nat’l Bank, 525 S.W.2d 857 (Tex. 1975) (trial court may not take judicial notice of attorney’s fees without evidentiary hearing)
- Garcia v. Martinez, 894 S.W.2d 806 (Tex. App.—Corpus Christi 1994) (reasonableness of attorney’s fees is a fact question requiring competent evidence)
- Manon v. Tejas Toyota, Inc., 162 S.W.3d 743 (Tex. App.—Houston [14th Dist.] 2005) (failure to introduce previously filed affidavit at trial defeats party’s burden to prove fees)