Lead Opinion
OPINION
The only issue sufficiently briefed in this appeal is whether the summary-judgment evidence conclusively proved that the attorney’s fees sought by the plaintiff are reasonable and necessary. Concluding that, under recent precedent from the Supreme Court of Texas, the summary-judgment evidence did not conclusively prove reasonable and necessary fees, we reverse the trial court’s judgment and remand for further proceedings.
I. Factual and ProceduRal Background
Appellee/plaintiff Mario Cisneros filed suit against appellant/defendant Felix A. Auz asserting a breach-of-contract claim based on a written agreement signed by Cisneros and Auz. The contract contains the following language:
Felix A. Auz agrees to pay the full amount of $167,000 by May 31, 2010 to Mario Cisneros.
Auz asserted that he had signed the contract only in his capacity as president of T.C.M.A. Trucking, Inc. (hereinafter the “Company”). According to Auz, the Company is the only party that might be obli
'Cisneros 'filed a motion for summary judgment seeking judgment as a matter !of law in his favor on his breach-of-contract claim and his request for reasonable and necessary. attorney’s fees under Texas Civil Practice and Remedies Code section 38.0Q1, which governs recovery of attorney’s fees in certain situations. The trial court signed an interlocutory summary judgment granting the motion. Cisneros then filed a motion for summary judgment seeking judgment as a matter of law that Auz take nothing as to all of Auz’s counterclaims. The trial court granted the motion, and rendered a final judgment granting this relief and rendering judgment in favor of Cisneros on his breach-of-contract claim and request for reasonable and necessary attorney’s fees.
II. Issues and Analysis
A. Does the summary-judgment evidence conclusively prove Cisneros is entitled to recover $20,250 in reasonable and necessary attorney’s fees?
In his fourth appellate issue, Auz asserts the trial court erred in granting Cisneros summary judgment on his request for attorney’s fees because the affidavit Cisne-ros submitted to support his fee request is not legally sufficient.
In his first summary-judgment motion, Cisneros sought judgment as a matter of law in his favor on his request for reasonable and necessary attorney’s fees under Texas Civil Practice and Remedies Code section 38.001, The only summary-judgment evidence regarding Cisneros’s reasonable and necessary attorney’s fees is a short affidavit from his trial counsel. In the affidavit, after providing some information about himself, trial counsel testified that he is familiar with the usual, customary fees in Harris County, Texas, for legal services and that .his hourly , pate is $675 per hour. According to counsel, this hourly rate is customary for experienced litigators practicing at large law firms in Houston, Texas. Cisneros’s counsel then generally déscñbed the services he had performed in the case by listing eight categories of work. Counsel stated that he is familiar with the legal fees usually and customarily charged for legal services of this type, and based on his knowledge and experience, in his opinion, a fee of $20,250, representing - 30 hours of' work for this matter, is usual and customary- for the type- of legal services that counsel performed in this case. Counsel stated that all of the work he performed was reasonable and necessary given the type of litigation involved. Counsel did not submit any time records or other documentary proof as evidence in support of Cisneros’s motion for summary judgment as to the fee request.
Cisneros’s motion was a traditional motion for summary judgment, and Auz may make such a complaint for the first time on appeal, despite Auz’s failure to submit any evidence in the trial court in an attempt to raise a fact issue on attorney’s fees.
In part of Cisneros’s argument, he also suggests that the El Apple I requirements do not apply to this case. El Apple I involved claims under the Texas Commission on Human Rights Act, as to which the lodestar method is used in awarding attorney’s fees. See El Apple I, Ltd.,
Under section 38.004 of the Civil Practice and Remedies Code, in a proceeding before the court, the trial court “may take judicial notice of the usual and customary attorney’s fees and of the contents of the case file without receiving further evidence.” Tex. Civ. Prac. & Rem. Code Ann. § 38.004 (West, Westlaw through 2013 3d C.S.). Under section 38.003 of the Civil Practice and Remedies Code, “[i]t is presumed that the usual and customary attorney’s fees for a claim of the type described in Section 38.001 are reasonable,” and that “[t]he presumption may be rebutted.” Id. §.38.003 (West, Westlaw through 2013 3d C.S.). In reaching its holding, ¡the Long court did not explain how application of the El Apple I requirements to attorney’s fees requests under Chapter 38 would be consistent with these statutory provisions. See Long,
In cases in which a party seeking attorney’s fees under Chapter 38 submits proof of reasonable and . necessary fees by showing the hours worked for each of the attorneys multiplied by the applicable hourly rate for a total fee, the Long court has effectively abrogated a number of Texas precedents regarding the application of Chapter 38. See Long,
Under the lodestar method, the determination of what constitutes a reasonable attorney’s fee involves two steps. See El Apple I, Ltd.,
A party applying for an award of attorney’s fees under the lodestar method bears the burden of documenting the hours expended on the litigation and the value of those hours. See id. at 761. The lodestar method aims to provide a relatively objective measure of attorney’s fees. See id. at 762. It has been criticized, however, for providing a financial incentive for counsel to expend excessive time in unjustified work and for creating a disincentive to early settlement. See id. To avoid these pitfalls, a trial court should obtain sufficient information to make a meaningful evaluation of the 'application for attorney’s fees. See id. Charges for duplicative, excessive, or inadequately documented work should be excluded. See id. A meaningful review of the hours claimed is particularly important because the usual incentive to charge only reasonable attorney’s fees is absent when fees are paid by the opposing party. See id.
The starting point for determining a lodestar fee award is the number of hours “reasonably expended on th'é litigation.” See 'id. The attorney’s fees evidence should include the basic facts underlying the lodestar. These facts include the following:
(1) the nature of the work,
(2) who performed the services and their rate,
(3) -approximately when the services were performed, and
(4) the number-of hours worked.
See id. at 763. An attorney, of course, could testify to these details, but 'in all except the simplest bases, the 'attorney probably would have to rfefer to some type of record or documentation to provide this detailed level of information. See id.
Cisneros’s counsel testified that $20,250 was a usual and customary attorney’s fee for the type of legal services that'he had performed in the case. Counsel based his opinion on a statement that he had worked 30 hours on the case and on his regular rate of $675 per hour.
Undqr El Apple I, Cisneros failed to submit evidence providing sufficient details of the attorney work performed so that the trial court could make a meaningful review of his fee request. See Long,
B. Has Auz sufficiently briefed his remaining issues?
In his first issue, Auz asserts the trial court erred in granting summary judgment because the contract, on which Cisneros relies is void. In his second issue, Auz asserts that .the trial court erred in granting summary judgment because Auz’s. affidavit created a fact question regarding payment of the purported contract. In his third issue, Auz states that the trial court erred in granting summary judgment because Cisneros did not defeat Auz’s affirmative defenses.
In his appellate brief Auz makes conclu-sory statements that
(1) .the contract at issue fails on the third and sixth elements for a breach-of-contract claim (according to Auz, these elements are meeting of the minds and consideration);
(2) the trial court erred in granting summary judgment because Auz’s affidavit creates a fact issue on payment;
(3) the trial court erred in granting summary judgment because Cisneros did not and cannot defeat Auz’s affirmative defenses, including accord and satisfaction, estoppel, duress, fraud, and payment;
(4) the record is clear that fraud and duress were involved in the formation of the voidable contract;
(5) the trial court erred in granting a no-evidence and traditional summary judgment on Auz’s counterclaims because Cisneros submitted no evidence to ■ defeat these claims,- the trial court’s rul-ingris like a'death-penalty sanction, and Auz’s evidence' raised- a fact question; and'
(6) whén the evidence is considered in a light most favorable to Auz on all challenged elements of the breach-of-contract claim, “[Auz] prevails.”
As to these statements, Auz has not provided analysis with citations to the record. Even construing Auz’s brief liberally, we cannot conclude he has briefed the first three appellate issues adequately. See San Saba Energy, L.P. v. Crawford,
III. Conclusion
Auz did not adequately brief his first three issues. As to the fourth issue, under precedent from the Supreme Court of Texas, the summary-judgment evidence does not conclusively prove that Cisneros is en
(Boyce, J., concurring)
(McCally, J. joiné both the Majority Opinion and the Concurring Opinion).
Notes
. The Company filed a petition in intervention, and the trial court signed an order striking it. This order merged into the trial court’s final judgment,- and the Company appealed, challenging the trial court’s intervention ruling. The Company’s appeal is pending in a separate case in this court, T.M.C.A., Trucking, Inc. v. Cisneros, Cause No. 14-13-00988-CV.
. The title of Cisneros's first summary-judgment motion indicates that the motion is both a traditional motion and a no-evidence motion. But, we give effect to the substance of the motion, rather than its title or form. See State Bar of Tex. v. Heard,
. The El Apple I case involved a 2.0 multiplier. See El Apple I, Ltd.,
. The product of 30 hours multiplied by $675 ' equals $20,250.
Concurrence Opinion
concurring.
I join the majority opinion’s determination that the attorney’s fees award must be reversed only because the supporting affidavit offers a global recitation of categories of tasks performed and the total number of hours expended. The affidavit does not allocate specific hours to specific tasks, as required under Long v. Griffin,
I join reluctantly because reversal here seems like an unduly formalistic result in a simple case involving a simple commercial dispute requiring a modest expenditure of 30 attorney hours to obtain a favorable judgment. By no measure is the requested fee disproportionate to the result. The situation here does not resemble the. extreme and abusive scenarios presented in other cases in which attorneys seeking fees failed to allocate more than 600 hours of attorney time as in Long; failed to allocate' more than 1,300 hours of attorney time as in City of Laredo; and failed to allocate more than 800 hours of attorney time as in El Apple I, Ltd. Having opted to invoke the lodestar method for computing attorney’s fees, appellee Cisneros nonetheless must satisfy that method’s requirements as set forth in El AppleLtd. and its progeny. See City of Laredo,
The supreme court has allowed some, flexibility in requiring documentation for “the simplest cases,” a category that certainly captures this contract dispute between Auz and Cisneros. See El Apple I, Ltd.,