Landon v. Jean-Paul Budinger, Inc.

POWERS, Before GAMMAGE ABOUSSIE, JJ.

POWERS, Justice.

Following jury Lan Robert against judgment don recovered Jean-Paul arising Budinger, Inc. in causes of action contract, princi of a construction out $3,973.37 together with pal amount $4,500.00 single fees. error, Landon contends the point of in directing court erred remittitur of THE AWARD OF ATTORNEY’S FEES $1,500.00 $6,000.00 from the amount Landon prayed fees in a found his reasonable reasonable based contract necessary attorney’s fee.1 We will af- provision entitling him fees to such firm the court. provisions based upon the of former Tex. parties appeal join single 1. on attorney’s The on the issue issue of fees or order a remittitur of point by part attorney’s of error raised Landon —whether the such award of fees which of the "ordering Sustaining trial court abused its a the is discretion Court feels excessive.” Bu- portion attorneys dinger’s request by a remittitur of of the fees for a "remittitur" "reform- jury.” by simplicity ing" judgment, the awarded The of their the earlier the court on trial 30, respective arguments April judgment contentions and obscures the 1986 rendered final we procedural appeal by a first-class and substantive snarl now review in taken In an Landon. by appeal, judgment, revealed the record on and neither trial the court recited party appeal finding attorney’s by jury at all. the mentions it We wish that the of the fees however, state, $6,000.00 hereby here to that we assume with the of remitted below, parties strued, $1,500.00 judgment properly by con- the the amount mak- Court in of attorney’s a ing attorney’s directs remittitur of fees in the of due total award fees procedure specified payable by [Budinger] with the conformance sum ... the of 315; and, $4,500.00. conversely, therefor in Tex.R.Civ.P. represent question that it does not a case where the trial There arises a of whether the trial judge by impermissibly jurisdiction has violated Rule 301 court had lost before it rendered the 14, 1986, and, substituting finding attorney’s judgment own his as to final course, of fees March 20, regard judgment 329b(e) without a motion in that for that of March 1985. Rule reality, judgment provides: non obstante veredicto. In the upon compliance we review does not timely by any rest with If a new trial motion for filed rule, court, party, either but the face of regardless the record does not the trial of whether an jurisdiction in our view demonstrate a appeal perfected, want plenary power has been has did, judgment vacate, in the trial court to render the grant modify, to correct, trial a new or to although matter discussed below this too is not thirty judgment or reform the until parties. by raised the days timely all are after filed motions overruled, jury by signed special found answer to issue 8 that either written and or- law, necessary attorney’s by operation reasonable and fee for der or whichever occurs attorney, prepara- the work of Landon's in his first. suit, $6,000.00. (c) rule, original tion and of the trial was After Under or subsection the verdict, jury Budinger returned its moved amended for new trial or motion to motion 6, modify, on judgment December 1985 that trial court is over- dis- correct or reform a regard jury’s by special operation days answer to the issue and ruled of law 75 after the deny altogether judgment attorney’s signed, Landon’s for claim unless earlier acted was Sustaining motion, Therefore, by fees. trial court motion on written order. Landon’s 19, 6, judgment January timely December 1985 for was rendered on the new trial filed Landon, respect principal by operation verdict for to the filed. It was overruled law on 4, which, 12, damages by following sum jury, found but denied March on March 1986, attorney’s his claim for fees. his Landon filed second motion. trial 6, 1986, court, however, January possessed power On plenary Landon moved a new still judgment days trial limited to the issue of his claim for attor- over its because 30 had not ex- ney's by opera- pired original fees. motion This was overruled from the date the motion was 4, law, by operation provided tion of law on March 329b(c). 1986. Tex.R.Civ.P. overruled 12, (e) Similarly, Landon filed on 1986 an 329b. March subsection of Rule judg- requested amended motion wherein he "that the court continued to have over judgment respect Budinger’s Court reform the to conform to the ment with motion of 20, 1985, jury's findings by to the extent of en- March which the court sustained [Landon’s] attorney’s Immediately, yet judgment April on titlement to fees." another final rendered purported trial court on March to "re- motion, judgment previous by awarding summary, post-judgment form” its Lan- the first $6,000.00 don the full amount of found Landon’s a new was filed Janu- motion for jury, principal ary timely in addition to the sum therefore because it also found 1986. It was days original jury damages. as his filed of the final was within Thereafter, Budinger judgment signed The trial moved the trial court on December again reforming judgment March "reform” its latest final court’s action in days judgment attorney’s January set taken after the 8 motion aside the award of within 30 thus, therein, law; among operation contending fees made things was overruled $6,000.00 plenary the courts "that the fees is action was within 329b(c). provided by We therefore con- unreasonable ages relation to the actual dam- Rule [sic] Budinger prayed demon- jury. on does not awarded the” clude that the record jurisdiction in this court. that the court either trial on the strate a want of "order a new accomplish result, (Supp.1986) may that Rev.Civ.Stat.Ann. art. 2226 be reversed (now appeal only 38.- if the Tex.Civ.Prac. & Rem.Code Ann. court con § (1986)). seq. 001 et As mentioned above cludes that the trial court “abused its dis $6,000.00 directing was a the remittitur. Flani determined cretion” in supra. amount for attor- gan reasonable For un ney’s incurred Landon. The evi- fees provided der statute which that the trial given dence on the may award “reasonable and neces attorney required fees is that Landon’s sary attorney’s equitable fees as seem case, complete hours to the trial of the just,” Court of Texas has performing aspects the familiar suit stated that (which and, specified); of this nature were [altogether] grant or denial of attor- hourly was a reasonable $100-$150 ney’s fees lies within the discretion ... charge attorneys for the kind of work and its will involved, in of the nature view basic appeal not be reversed on absent a clear particular aspects. case and its various showing that it abused that discretion. Thus, $6,000.00finding unquestiona- 454, County, v. 692 Oake Collin S.W.2d bly jury. within the evidence heard (Tex.1985) (parenthetical 455 statement damages liquidated, are not added). appeal, When In we must is a it is axiomatic that their ascertainment the trial court therefore determine whether jury. directing of fact for the But the “abused its discretion” remit- determination, jury’s $1,500.00 even when within titur in a less than the sum evidence, subject $6,000.00 remains to the trial found to be a reason- control; example, may grant it necessary attorney’s able and fee. Landon remittitur, a new conditioned on contends the trial court “abused its discre- jury’s “manifest tion;” opposite. when the determination is Budinger contends the ly large.” must, therefore, Tex.R.Civ.P. assign meaning too small too first (West 1986); Flanigan 328 discretion” standard that to the “abuse of 598, 324 S.W.2d 835 When appeal.2 on controls our decision attorney’s fees are recoverable as an item THE STAN- “ABUSE OF DISCRETION” case, damages, in jury the trial court REVIEW DARD APPELLATE FOR independently are must determine what of discre- said that “abuse necessary attorney’s reasonable and fees It has been record, easily defined.” case, concept “not in view of the whole tion” is a Northcutt, 703, 706 Bennett v. applicable of such 544 S.W.2d rules to the award writ). fees, problem (Tex.Civ.App.1976,no judge’s experience and the trial as a attempts to judicial define Southland Insur lawyer judge. seems to be that and Life Norton, (Tex. routinely take the form concept ance Co. v. almost S.W.2d substituting terms that are approved); Argo holding merely Comm.App.1928, unrefined, variable, subjective, and Company equally naut Insurance v. ABC Steel Traveler’s Insur- Co., Inc., conclusory. Landry v. (Tex. Products (Tex.1970) deci ance n.r.e.) 458 S.W.2d Civ.App.1979, writ ref’d “unreasonable”); Johnson (“arbitrary” or jury’s finding If sions cited therein. Richardson, City amount set 206 S.W.2d to fees exceeds the (“more writ) an than (Tex.Civ.App.1947,no upon by the trial court as rea tled Trust- judgment”); County School the court error sonable and v. District Trust- County lower sum. Id. The action ees Callahan award the ees, (Tex.Civ.App.1946, directing a remittitur when continuances, jury ship proceedings, pleadings, misconduct, appel- standard of 2. The "abuse discretion” counsel, special-issue applies argument from a wide varie- late review on cost, verdicts, taxing submission, ty civil and setting of trial-court determinations both aside appeals, it setting criminal cases. In civil aside default judgments, modification of rulings judging trial-court is the standard for judgments, joinder of actions. temporary injunctions, receiver- such matters as (“harsh n.r.e.) arbitrary”); government cause writ ref’d be cannot conducted Brazos River & Reclamation Dist. v. without C. the exercise someone of the Harmon, (Tex.Civ. 178 S.W.2d 292-93 choose authority, with that is to w.o.m) App.1944, (“mere mis writ ref’d determine, say, according must take” of insufficient and it judgment, the official’s best what alterna- coupled “the additional elements tive is best The “dis- circumstances. arbitrariness, capriciousness, partiality, contemplated by cretion” the “abuse of dis- etc.”); Gordon, Bobbitt signi- cretion” standard is similar in that writ) (not merely 238 (Tex.Civ.App.1937,no power legally fies the committed to a trial judgment, perversity “error of but among court to choose alternatives: wheth- will, passion, prejudice, partiality, or moral er a temporary injunction, to issue delinquency”). expres These substitute judgment, to set aside default whether to sions really illuminating are no more than special exception, pleader’s sustain a and so original expression if serve either is to forth. The standard is a review-limiting appellate as a basis for partic decision in a that, limits, within device immunizes from Nevertheless, ular standing case alone. revision the choice made the reported decisions reveal particular in a case. a similar attempt courts too often that— just do way, agency’s an administrative choice applying to “the record as a whole” protected case is from reversal contested original expression or substitute to divine judicial review of discre- “abuse ultimately whether the trial action court’s tion” standard set forth in Tex.Rev.Civ. in particular transgressed the case a stan 6252-13a, 19(e)(6) (Supp. art. Stat.Ann. § dard judicial of “sound discretion.”3 1986), coupled where it is with the analo- This form appellate review deci- and gous capricious” or expressions “arbitrary helpful sion has parties not been to the who “clearly and unwarranted exercise of dis- appellate must frame their in contentions say, Needless to a matter cretion.” that is appellate reference to the courts’ earlier judge’s to a trial discretion is committed decisions about “abuse what constitutes an deciding his to rule one never a reason for appel- discretion.” does not It aid the way opposed to another. late struggle courts consistency who however, fundamental, that neither It is applying amorphous while standard a so a nor an exer- trial court administrator everything that it nothing the means authoritatively power that is cise a not time; same nor the trial courts must who law; by may he vested in him nor exercise guide in their conduct future cases what contrary in is power a vested a manner that appellate courts have said and decided legal to law or reason. This adherence in applying a standard that lacks dis- rules, is principles, and criteria illustrated standing cemable content The alone. following “abuse statement of represents of discretion” standard to the discre- nevertheless an Court of Texas reference essential fundamental principle complex to set and delicate rela- tion committed to a trial court aside tionship appellate judgment, pursuant between trial courts. or to an not a default It susceptible way is of use in a is equitable motion new trial: importance, consistent with its and to Naturally appellate will differ on courts we now turn. whether trial the delicate discretion. have abused their courts usage, common word “discretion” courts have some measure signifies power among While trial a choose alterna- truth, matter, as, they legal is discretion tives within bounds. This by equitable government governed be- all cases routinely given to officials have in manner, been able to applied that I have 3. When in this dis- idea content ever "abuse recording just way is cretion" has been described as discern. It punch delivery judicial midriff. to the appellate the noise made court while Appellate Rosenberg, Trial Court Dis- Review delivering figurative judge’s blow to the trial 173, cretion, (1975). meaning F.R.D. 180 plexus.... 79 solar or term has no 936

principles, it is not an unbridled discre- But the “abuse of discretion” stan protects dard they might tion to decide cases as deem also from revision a proper, any guiding range limited reference to trial-court without choices even they by legal when are marred principle. rule or error. That say, protects is to the standard to a limited Lines, Craddock v. Sunshine Bus degree “right” the trial wrong to be 388, 124, (Com.App.1939); 126 suffering appellate without revision. If also, see Missouri-Kansas-Texas Railroad legal error committed the trial court Bush, 310 (Tex.Civ.App. Co. v. S.W.2d 404 “prejudicial” is not or if it does not result 1958, n.r.e.), ref writ d cert. denied 358 “injury,” the trial court’s choice does not 45, (1958). U.S. 79 3 L.Ed.2d 67 S.Ct. discretion,” amount to an “abuse of “judicial contemplated discretion” say is to it remains immune from “judicial impression standard notwithstanding legal revision error. ism,” rather but a discretion exercised in Brandon, 141 Schroeder v. Tex. 172 rules, legal principles, accordance with (1943); Lipscomb Perry, S.W.2d 488 Allen, and criteria. Brown v. U.S. (1906). Tex. On S.W. 443, 496, 437, 440, 73 S.Ct. 97 L.Ed. 469 hand, legal error of course way, Stated another “the trial prejudicial injurious probably where court abuses its discretion when the law is improper judgment caused an in the case or misapplied to established facts....” prevented appellant making from State v. Southwestern Bell Tel. proper presentation appeal. Tex.R. (Tex.1975)(emphasis add (West 1986). App.P. This would include ed). legal affecting the fairness of errors judge exercises a If See, proceeding e.g., as whole. Dillard law, given choice him and does so in a (Tex.App.1984, Berryman, 683 S.W.2d 13 way respect, every that is lawful in he has writ); no see also Johnson v. United error; and, of course committed no it States, (D.C.Ct.App. 366-67 398 A.2d may not in such a case be concluded that 1979); Harm, Pope, Jury Misconduct and he “abused his His choice in discretion.” (1960). Baylor L.Rev. particular appel case is immune from revision, though appellate immunity appellate late even from revi The sion, might in implicit court not have made the same choice the “abuse of discretion” standard, jur designed in the same circumstances. is to secure certain Jones advantages de Strayhorn, isprudential as these are Tex. however, Rosenberg, Fundamentally, Judicial Discretion scribed Above, Court, appel From trial court’s choice is immune from the Trial Viewed of (1971).4 Syracuse L.Rev. 660-65 by late revision because it is untainted le impor- from this consequences flow gal error. Certain shape given flexibility necessary 4. There why to an ad hoc reasons trial courts are have the are statute, rule, by law sufficient for the circumstanc- "discretion” or common determination them, scope example, disputes decision. There are five of the first two es—for about examination, important, surprise, most set out in the Rosen- the order cross claims berg testify, article: and other mat- in which witnesses shall ters of trial administration. many judge occupies respects 1. The trial process appellate-review would break The superior position from which to ascertain and every if be extended to include trial- down it greater accuracy evaluate with all the matters the outcome action even if it did not affect court par- and considerations critical to a decision on with which was of the case or the fairness arising may disputes ticular at trial. He there- conducted. appel- give fore a better than could an judges be unable to function 4. Trial would disputes, late because of the to these actions, effectively any of their taken if and all appellate inherent limitations of an record and subject appellate of a were imperfect presentation in the course its aspects. of all the relevant judgments. of their and a reversal revision actions within Many disputes include all trial-court 5. To 2. ply kinds of trial-court are sim- delay intoler- governable scope appellate revision would by a hard and fast rule of litigation. any necessity ably kind so a trial conclusion court must exer appellate tant foundation. court exercise of legally discretion was If erroneous; con power (2) was, cises its of revision because it if it whether the the discre cludes the trial court “abused” impact of requires the error on the case law, only tion committed to it it is not analysis appellate reversal. An fair but essential that the reviewing court will, view, record in this manner in our be point specifically out the basis of its conclu practical, logical, illuminating, more rule, by designating legal princi sion important purposes consistent with the ple, or criterion it relies for its conclu “abuse of discretion” standard meant legal sion that the trial court committed a serve. justified ap error that reversal. Or if the pellate court concludes there was no the determination com Was discretion, “abuse” of it should state the plained a matter committed basis for that conclusion—for by law to the trial court’s discretion? misapplication that there was no of the law may statutory, procedural, look to or com court; or, if there was case) (including equity proper mon law in a error, prejudicial it was not viewed as power to determine whether the of choice specified injurious may reasons. It be was legally by any vested the trial court of these sources of law.6 We conclude the that the reasons for the standard do not e.g. case. See Noo apply particular in a unquestionably law committed to the trial Steamship nan v. Cunard 375 F.2d power court the to make a determination (2d Cir.1967). appellate Unless the fees found spells conclusion, out the basis for its just compensa excess of consistency there can be no from case to fees, though tion for even within case, levels, either the trial or expressly given evidence. parties and the intelligently cannot formu in Tex.R.Civ.P. where trial courts are late their contentions in appeal. further grant authorized to new trials or order attempt following We shall therefore damages remittiturs “when the are mani paragraphs supply aspect this essential festly large.” too small or too That the review. existed the trial court is also made abundantly clear Court’s THE APPLYING STANDARD IN THE in Flanigan supra, decision PRESENT APPEAL damages generally, the decision general in Southland Insurance Co. v. Nor outline “abuse of discre- Life ton, given tion” supra, applied regard above particular to attor only by case ney’s a consideration of its fees. There are a number court of defining elements, effect, various appeals done in was decisions to the same States, supra.5 Argonaut Johnson v. United fees. See regard attorney’s shall consider Company Insurance v. ABC Steel Prod separate these elements in Co.,Inc., follow, supra, to ucts paragraphs many the numbered where of these proper Moreover, the arrive at decision to two are cited. this is not a case relative (1) queries: ultimate judge’s the trial where the trial discretion a class not, course, e.g., Landry Compa 5. We do of include our con within 6. See v. Travelers Insurance power judge (Tex.1970) sideration the ny, of a to make trial where the trial 458 S.W.2d 649 subject appellate choices that are not review power for remote to exclude evidence judges may and revision. For law; trial Jones v. ness derived from the common grant deny their discretion or a motion for new (1959) Strayhorn, S.W.2d 159 Tex. 321 290 328; however, only trial under Tex.RXiv.P. procedure a rule of committed to the where deny their decision to the motion is reviewable taxing trial court's discretion the matter of costs appeal on under the of stan "abuse discretion" lawsuit; and, v. and fees associated with a Penix grant dard. The trial court’s decision to a time Paris, (Tex.Civ. First Nat. Bank 260 S.W.2d 63 of ref'd) trial, ly possess motion for new while the court App.1953, writ where the trial court was jurisdiction, es is not reviewable on even by to remove statute with the vested though it results from an exercise of trial-court for cause. trustees discretion. Co., v. Cummins Paisan Construction (Tex. 1984). 682 S.W.2d 235 938 rulings

of been pleadings trial-court has withdrawn such cases the themselves consti- by from him a law that rule of controls upon tute the basis which the judge trial particular cases class. e.g., within the See purported to exercise his discretion and the Government Services Ins. Underwriters v. context in which his actions are to be Jones, (Tex.1963)(granting 368 S.W.2d 560 judged appeal. on Southwest Stone Co. v. of mandatory by continuance made statute Commission, Railroad 173 S.W.2d 325 application attorney on of who is member w.o.m.). (Tex.Civ.App.1943, writ ref’d sessions). Legislature attending of case, present the the factual context We conclude then that the trial did court chiefly that made in the of trial the case on not, remittitur, ordering purport merits, including part course that by given exercise not law. upon evidence bore court, in making Did trial fees, attorney’s reasonable but it also complained appeal, determination included the documents in the case and the recognize purport to act in an exer- judge’s trial given observation of the cise by discretion committed to it by to be elements considered him in instances, may law? In some be con- appraising the reasonableness and necessi- tended that the trial abused court its dis- ty fees and whether declining failing cretion to exercise awarded manifest- discretion committed to it law in circum- ly large. too required stances where the court was to do e.g., so. Berry, See Womack v. 156 Tex. purports If a trial court to exercise (1956) (“It S.W.2d well discretionary power committed to it require settled that mandamus lies to ... law, when court lacks sufficient fac discretion.”) That exercise matter tual basis which to make a rational arise, however, does here because the way, decision it is either said court purported trial court to exercise discre- abuses its discretion. Dallas General ordering tion by requested the remittitur Wamix, Dallas, Drivers Inc. Tex. by Budinger. (1956); Powers Tem Does the record reveal ple Trust S.W.2d 951 upon which the trial (Com.App.1935); Employees’ sufficient facts Haden Ass’n rationally court could act in an exercise Lovett, (Tex.Civ.App. its discretion? When discretion is com- 1938, ref’d). also, writ See Enter Weisel lawby mitted to the trial the law (Tex. prises, Curry, Inc. v. contemplates by necessary implication also 1986). therefore It is essential that such discretion will be exercised appraise appellate court whether a rational aspect rationality rational manner. This by the decision have been made trial could has been referred to in various light court information available decisions, above, some of which are cited to it. synonyms “arbitrary,” “unrea- case, Budinger In the moved af- sonable,” “capricious.” Whether fees, ter trial for a remittitur of rationally acted or irrationally, contending by the the amount awarded sense, may only appraised in a manifestly large because it jury was too to the context in reference factual which princi- in to the was unreasonable relation making in its the court acted choice be- damages. as pal jury sum awarded rulings. possible In tween alternative was in No evidence taken connection cases, might some the factual context may pre- Budinger’s motion. We therefore require necessity compilation an evi- judge trial determined Bu- sume that the dentiary special inquiry, record in a as in dinger’s ground asserted motion on the jury the case of misconduct. Tex.R.Civ.P. upon compiled therein the record and based others, 327. In it is no evi- manifest that theretofore, as as proceedings well dentiary required, record at all is as when a personal judge’s the trial observations special judge trial sustains or overrules a appraisal trial. exception opponent’s to an In of the pleading. conviction, impeachment, may say record offered unable to from the

We are a matter erroneously the trial court could exercised before us that be light made order in so recent or so remote law when rationally have its conviction these, foregoing matters. From we as a matter of to admissible or not be Lines, deci- he could have made a rational v. Sunshine Bus law); believe Craddock Budinger’s motion after consider- sion on supra (discretion court in set- of the trial up ing go to make all the elements exer- ting judgments default must be aside necessary” attorney’s fee. “reasonable and rules laid under the common-law cised of Texas for such by Supreme down Court errone- 4. Did the trial court exercise Robertson, v. cases); Robertson ously the discretion committed to it (Tex.Civ.App.1964, writ ref’d S.W.2d law? We arrive then at one of the two n.r.e.) (trial its discretion court abuses inquiries necessary answer- ultimate change-of-venue application it denies when may determine that the trial ed before we es- of uncontradicted evidence that face directing court “abused” “discretion” alleged applica- in sufficient tablishes facts the remittitur —did the trial court- err with Wissman, Boucher v. rule, tion); any applicable legal princi- regard to n.r.e.) (Tex.Civ.App.1947, writ ref’d ple, or criterion? (temporary injunction, while in trial court’s course, First, of we must consider wheth issue, may not be issued on discretion to making erred in a choice er the trial court pleadings inadequate proce- under rules of range that was not within the of choices Crouch, dure); Crouch implicitly permitted by law. The trial court writ) (trial (Tex.Civ.App.1942, no determined that the amount of grant application for tem- discretion to manifestly jury fees was awarded porary injunction must be exercised accord- large. previously, too As discussed this ing requirements procedure of rules of determination was within the alterna proceedings). It is not apply to such court, tives available to the trial even in the case that the contended though jury the sum found was remittitur, Carswell, court, ordering committed Flanigan within the evidence. by violating any such rule legal error sup ra.7 applicable to the case. law inquire We next whether the trial court the trial Finally, inquire we arrived at its determination violation erred, complied with though it even general rules of law. Such errors respects, because the law all requirements occur in reference to unreasonable in legally was determination statutory, procedural, or common law factual-legal context in which it was e.g., Landry v. Travelers In See rules. (Tex. might because Company, surance This have occurred made. consider a factor 1970) (trial evaluating trial court failed to court’s discretion in legally was in the evidence that party’s previous remoteness of a criminal shown court, when Flanigan supra, Supreme ordered the trial remittitur record, light rejected of the whole specifically in the Court of Texas the idea that considered upon order of remittitur manifest- are conditional a determina- would render the remittiturs If, (based evidence) unjust. light the facts and ly circumstances, of all tion sufficient awarding jury improperly order of remit- motivated in the the the trial court’s Instead, they manifestly unjust, sum Court stated that both the trial court and the did. 324 S.W.2dat 841. the Court ... titur was Appeals or such restore the remittitur should appeals operate Appeals under the same stan- court of Civil part as the Court of thereof specific compensation. With dard of reasonable reference to the prevent order from deems reviewing judg- manifestly unjust and render Court stated: have rendered. trial court should ment as the This form of at 840-41. 324 S.W.2d evaluation was party judge has ordered a [W]here explicitly prescribed as the man- portion a condi- verdict as remit tion for reviewing deter- court must which “the ner in overruling the a motion for new deciding propriety the order's passing upon mine Appeals, such Court of ... in making in judge abused his discretion trial action the the order" should allow the trial court’s action ... S.W.2d at 840. remittitur. 324 opinion of to stand unless it be of the any relevant to determination of what reasoning ordering con- the trial in necessary stituted a reasonable and attor- remittitur. fee; ney’s because the court’s determina- practice The better would have tion rested a factor that it was forbid- been for the to in trial court state arriving den in law to consider at an reasoning parties record its that so

estimate of a reasonable and at- particularly, also appellate court, but fee, torney’s when the court be- might intelligently assess whether the trial might lieves the trial court not have made grounds erred court on the we here consid the same any estimate absent consideration McDonald’s, er. 4See Texas Civil Practice factor; or, of the forbidden because the 16.05, 7-8, (Even at fn. 24 trial when § considering trial in a legally relevant required findings courts are not file to of factor, exaggerated it to an unreasonable fact they and conclusions of law often do degree. Friendly, See Indiscretion About regard practice” so matter of "[a]s Discretion, Emory L.J. 769-70 interlocutory their determinations on or lie, will ders from which that course.”) is the “better value The relevant factors in the law, findings of fact conclusions legally may case are those that be con law, required they even when are not arriving sidered in at an estimate of rea dramatically illustrated Fancher attorney’s quality sonable fees: the of the Caldwell, 8, 314 done attorney; work Landon’s the time (1958), findings where such and conclusions required attorney; and labor required, were not but legally because of case; complexities nature and of the them the Court able to ascer money any amount of or prop the value of tain had trial court abused its involved; or erty other interest the extent by rendering judgment discretion non ob- responsibili attorney’s and nature of the on an stante veredicto erroneous the ties; attorney whether the lost other em ory. case; ployment by reason of the the bene course, cases, the trial some court accruing fits to Landon from the legal duty may be under a to state its work; certainty contingency or of the reasoning arriving a determination attorney’s compensation; or whether the discretion, as in the case that lies within its attorney’s employment was casual or for determining temporary its issue or an established constant client. e.g., See 683; also, injunction. see Tex.R.Civ.P. Morgan, Morgan v. 657 S.W.2d 491-92 Co., Apparel El Paso Lewkowicz v. dism’d). (Tex.App.1983, writ Another le 1981) (Tex. (recognizing findings S.W.2d 301 gally relevant factor is reasonableness of law motion to fact conclusions relationship between the amount agreed judgment); set aside Dallas Heat jury principal damages awarded Pardee, ing Inc. 561 S.W.2d 16 awarded n.r.e.) (motion (Tex.Civ.App.1977,writ ref’d Perkins, fees. Morgan Elizabeth Inc. v. following judgment); for new trial default Inc., Exp., (Tex.Civ.App. Service, Plan Brungs Consolidated 1977, writ). no All of must the elements Inc., (Tex.Civ.App.1975, writ in arriving orchestrated at the estimate. n.r.e.) (findings fact and conclu ref’d single No controlling element is without required sions law in determination regard to the others. miscon motion new trial based Concerning subsidiary inquiry, cases, this we duct). In other it manifest impediment findings encounter a serious con- fact or need file court not law, sideration of the reasonableness of state conclusions of otherwise determination reasoning, support court’s determination. of its what, anything, if discretion. record does not reveal in a matter committed to arriving required at its For these are considered special ruling on altogether support It is the trial court’s determination. silent as to exceptions adversary’s pleadings to an be- 5. legal the record reveals error If pleadings cause the themselves are the is the error a magni- ba- reversal, require tude to considering sis of the determination. Southwest Stone whether its on the outcome Commission, supra. Co. v. Railroad effect prejudicial case was or whether it ad- directing In a present remittitur versely pro- affected fairness of case, the trial court was under no obli ceedings as a whole? There no gation reasoning upon to state the showing any that the trial court committed its determination was Flanigan based. v. legal all, error at as discussed in numbered Carswell, supra.8 present In the case we 1-4, paragraphs we need not of course presume must therefore the trial court any consider whether error only legally considered relevant factors magnitude require as to reversal exaggerate and that it did not omit or Tex.R.App.P. order under below 81. The them, but orchestrated and evaluated inquiry content of this is well illustrated in way. Id.; them in a rational Schroeder v. States, supra, Johnson v. United but we Brandon, 141 Tex. need not discuss it here. (1943); Lipscomb Perry, v. reasons, foregoing For the we cannot (1906); Smith, 96 S.W. 1069 Texas Remit conclude the order of remittitur was mani- Practice, titur 13 Sw.L.J. Carswell, festly unjust. Flanigan v. su- respectfully urge Supreme Court of pra. Finding no only point error Texas to reconsider the Landon, assigned by judg- we affirm the required the trial court should be to state ment below. reasoning present. its in cases such as the important The matter because of the ABOUSSIE, Judge, concurring. anomaly engendered by the rule of Flani- I judgment. concur this Court’s Carswell, gan supra. A trial-court er court, however, required should not be ror is if “probably prevented reversible reasoning explain and decision-mak- appellant making proper presen from ing process reaching time it result each tation of the case to the discretion, or else that exercises authori- Tex.R.App.P. 81(b)(1). court-” On the ty is erroded. hand, a trial sup- court’s omission to ply upon the reasons which it ordered a prevent proper presenta-

remittitur does appellate court,

tion of the case to the but legal error,

it is not even much less reversi- error, Carswell,

ble under Flanigan v. su- pra. We need not discuss the matter fur- SHANNON, INC., Appellant, BILL ther, however, for there is in the point attacking no of error the trial- ground. on that CLEMENTE, Appellee. Frank SAN No. 04-86-00247-CV.

Owing requisite presump to the whole, tion and based the record as a Texas, Appeals Court of we are unable to conclude that the trial Antonio. San action was unreasonable Feb. sense. It was Landon’s burden to show or other error in the unreasonableness trial court’s determination. burden

has not been carried. assigned Flanigan no reason for its supra, the trial court requiring a remittitur. We think Court stated as follows: action in deciding relevancy in the remittitur no this has briefly deem it to refer to the [W]e question. opinion Appeals’ Court of Civil majority wherein added). (emphasis give weight seem to some fact

Case Details

Case Name: Landon v. Jean-Paul Budinger, Inc.

Court Name: Court of Appeals of Texas

Date Published: Feb 11, 1987

Citation: 724 S.W.2d 931

Docket Number: 3-86-018-CV

Court Abbreviation: Tex. App.