*1 any engi in the man barred cause of action Conclusion context, it neering despite the fact that was is in all judgment of trial court buyer rely lot foreseeable would things AFFIRMED. plat. Id. earlier at 550. Finally, Mercury in Bui St Ins. v. Paul law,
Co., court, applying Texas held federal against
that an has no cause of action insured an Id. at investigator
an for insurer. 910. reasoning persuasive. this We
We find summary prop
therefore find Haag
erly granted trial court because Munizes; Antonio Jos O’FARRILL duty no owed therefore AVILA, Appellant, Haag negli Munizes not hold for could liable gence. lia Haag And because could not be v. it negligence, ble for could be liable for GONZÁLEZ, Appellee. Luisa gross negligence. Tex. & Rem. Civ. Prac. (Vernon 1994); § 41.004 Newman Ann. Code No. 04^97-00234-CV. Inc., Tropical Visions Texas, 721-722 (Tex.App. Antonio writ Appeals of Court of — San denied). summary judgment Therefore Antonio. San Haag negligence gross negligence 6,May 1998. proper. judg affirm trial court’s Haag Engineering. ment Rehearing June 1998. Overruled
Sanctions cross-point
In one of error State urges against
Farm that we assess sanctions bringing appeal
the Munizes for for de
lay appel sufficient cause. An without may
late court assess sanctions if it deter appeal delay
mines was taken
only hope winning and without a realistic Elm
reversal. Creek Villas Beldon Roof 150,155
ing, (Tex.App.—San to An writ). nio Eighth
We note that the Munizes’ for, recovery sought
Amended Petition
among In things, other violations under the
surance Texas Administrative Code clearly disposed of in the
Code which were May, judgment.
trial court’s While difficult, judicata res it
principles of can be litigant only gets
should be understood that apple given case. This
one bite of delayed disposition of
tangled appeal final judicial needlessly dissipated
the case However, the Munizes
resources. brought appeal because of have
inability grasp complex principles of preclusion, State Farm’s
issue we overrule
cross-point seeking sanctions.
240 *4 Antonio, Orsinger, William R. San
Richard Sessions, L.C., Sessions, & Lewis Sessions Antonio, Appellant. San Antonio, Karl E. Valerga, San Victoria Hays, San of Karl E. Hays, Law Offices *5 Antonio, Appellee. HARDBERGER, C.J., and
Before DUNCAN, JJ. RICKHOFF APPELLANT’S MOTION ON OPINION REHEARING FOR HARDBERGER, Chief Justice.
INTRODUCTION Rehearing grant- is Appellant’s Motion for original opinion part. This court’s ed February are judgment, issued judgment opinion are and this withdrawn af- original opinion, we In our substituted. judgment on all trial court’s firmed the except of interest on points the assessment attorneys’ Specifically, with appellate fees. sufficiency of regard legal factual support the attor- award of the evidence fees, appellant’s points of neys’ we held that preservation of waived. Because error were required is sufficiency points of error trials, modify opinion on non-jury we our those the merits of rehearing to consider attorneys’ relating fees. claims appeal a breach contract This is an from judge appellant, found that The trial case. (O’Farrill), had Avila Antonio O’Farrill Jos appellee, Louisa two contracts with breached (Gonzalez). The González-Chacon contract González awarded claims, attorneys’ ap- fees and fees plus supreme purchasers company. and the loan González peal to this court and to the court. part performed that she of the affirm the as modified. testified fully, ceased but that O’Farrill FACTS making mortgage payments after less than years, legal initiated ac- two when González three-year This lawsuit arises from a do- holding against him. The bank parties, a tion relationship mestic between the mortgage home has foreclosed on the relationship produced daughter, that has on the Again, present was not corporation, tangle litigation, property. and a includ- O’Farrill suit, claims, testimony. ing paternity present controverting tort contract at trial to claims, claims, support ego alter and child error, points appeals In O’Farrill eleven Many of the have re- claims. issues been (1) him, judgment against claiming that solved; pending. some are still factually insufficient evi- legally there is or us, the ease before support of the two dence to the existence validity asked to consider the and effect of (2) contracts; legally factually there is agreements parties: two finding support insufficient evidence promise, signed by written and (3) agreements; that O’Farrill breached 5, 1994, July pay per admitting parol the trial court erred in evi- month, and an between the two terms; prove the contracts and their dence they regarding purchase of the home (4) upholding court erred in Antonio. The trial court de- shared San City agreement despite want of con- Mexico agreements termined that both reflected en- (5) sideration; legally evidence is or fac- forceable contracts. tually insufficient to the award (6) $200,000; failing erred in the trial court document, signed July written and separate findings on each contract to make City, promise a bare O’Farrill Mexico is (7) claim; factually legally the evidence monthly payments to make to González. The *6 support insufficient to the amount of attor- makes no mention of duration of document (8) awarded; neys’ legal- the evidence is fees any promise payments these or of return factually support ly or insufficient to the by made González. The trial court allowed attorneys’ ap- amount of fees awarded on both issues. González extrinsic evidence (9) court; supreme the peals to this and the that, money, exchange in for the she testified attorneys’ awarding trial court erred in fees promised in had to live with the child San segregated plaintiff the had not fees when Antonio and to remain home with her rather from fees incurred on for the contract claims employment. than seek As for the duration other, unsuccessful, par- claims between agreement, of the González admitted (10) ties; assessing in the trial court erred matter, agreement was silent on the but she attorneys’ appellate fees from interest on understanding that testified that her the date of date of rather than by his child raised did want O’Farrill appeal perfection of the or the date which money was a strangers, and the therefore (11) filed; of error is application for writ guarantee that would remain with González grant- in its discretion the trial court abused throughout years, the child the formative judgment against ing plaintiff the defen- in until the child was settled school. O’Far- dant. at trial to controvert this appear rill did not
testimony. OF ERROR ONE-SIX: POINTS agreement parties The second between THE CLAIMS CONTRACT in Antonio. purchase to a home San González, points of error address According agreed to contrib- O’Farrill’s first six to she home, agreements the existence and breach of the up front for the and O’Far- ute one and monthly parties. Points of error agreed payments on the rill to make legally or agreement, allege that the evidence is remaining proof As of this two debt. finding factually support a that testimony and the insufficient offered her own González they or that were papers the contracts existed for the home. These loan documents three and four Points of error only between the breached. reflected Bain, unjust. festly wrong and Cain parol evidence address admission (Tex.1986). 175,176 of S.W.2d show consideration for and the duration promise pay González O’Farrill’s clear, then, of O’Far- the absence It is alleges per month. Point error five does not testimony on the contracts rill’s legally factually insufficient the evidence is appeal. for González on success guarantee damages award. support the sufficient, present- the evidence legally To be competent and by admissible her must be ed Sufficiency Review Standards of legal theory. The evi- a support viable uncontroverted, presented, even if dence findings will fact We review sufficiency conceivably fail a factual could sufficiency legal factual bench trial sufficiently if weak. review by the same standards used evidence jury’s reviewing supporting evidence Consideration Hall, Revisiting Wendell verdict. See W. promise O’Farrill claims that Appeals, Review in Civil 24 St. Standards of $5,000 per month cannot be pay González (1993). 1045, 1145 L.J. Mary’s proven has not been enforced because it contract, correctly binding as Conclusions of law are not A O’Farrill contract. court, consideration, serts, appellate supported on an which is free make must legal its own conclusions. Muller v. Nelson no consideration. and this recites Carter, (Tex. gave con Sherrod & at tidal that she testified writ). prom Civ.App. promise: her Worth Con for O’FarriH’s sideration — Fort stay clusions of law are as a matter of and to at reviewable ise to remain San Antonio law, grounds sufficiency couple’s daughter. but not on the of the Gonzalez’s home with the supporting coupled of their evidence. Mercer v. with fact that she did testimony, Bludworth, child, pro (Tex.App.— Antonio with remain San n.r.e.), Dist.] writ ref'd this claim. [1st Houston some evidence vides grounds, any Shumway contrary overruled on other evidence. did not offer (Tex. Corp., evidence so weak Horizon Credit do find González’s 1991). manifestly wrong as to render result unjust result. legal sufficiency To test of evi evidence le- O’Farrill counters supporting finding, this court dence fact *7 insufficient, is barred gally because González only supporting must the the view evidence introducing by parol rule from the evidence finding and all inferences to be drawn from regarding consideration. extrinsic evidence contrary All that evidence. evidence and parties a valid have entered disregarded. be v. When inferences must Stafford (Tex.1987). all the terms of 14, agreement that embodies Stafford, 726 16 A S.W.2d agreement, parol may not be legal sufficiency evidence challenge will be sustained contempo (1) or prior to inconsistent complete a used show when there is lack evidence (2) agreements. Hubacek v. Ennis fact; by raneous a court is barred vital the Bank, 159 Tex. 317 S.W.2d 32 State giving rules law from or evidence (1958). preclude enforce This rule does not weight only prove evidence offered agree (3) contemporaneous fact; prior or prove ment a the evidence offered vital or scintilla; with do ments that are not inconsistent a a fact is no more than mere vital implied (4) vary express or conclusively not or contradict the evidence established Smith, at agreement. Id. 317 S.W.2d terms of the a fact. v. opposite of vital Cecil (Tex.1991). n. 2 33. 510 presented The document sufficiency To factual of the evi- test the is, face, no than a unilateral finding, this on its more supporting a fact court dence is pay, which not enforceable weigh promise will must all the evidence and view and Sign v. Texas South only supporting contract. See Federal if the evidence reverse (Tex.1997). Univ., 401, finding is mani- ern finding is so that the weak couple’s daugh- stay home with is career argues that extrinsic evidence illusory, promise if the first were ter. Even promises were prove that mutual allowed to has, far, performed so the second is not. She agree. rule is that it exchanged. We “The agreement, arguably to her part of the evi- her may in fact shown extrinsic [with be even if the detriment. that consideration exists dence] promise.” form of a consideration takes the Duration 7(f) § Perillo, Contracts 3— Calamaei & (3rd ed.1987). for this rule is The rationale argues agreement sides, that, without consideration both is too uncer himself and González integration, partial is at best Specifically, O’Farrill tain to be enforceable. showing of consideration would contains complains that the itself any of its terms. Id. contradict monthly specific term of duration for the testimony on that González’s payments -and promises if were not mutu Even the pleadings inconsistent: her this issue was contracting, parties’ al at the time of payments were to be for suggested that the agreement renders the performance on the life; they were to be for at trial she claimed Supreme The Texas contracts enforceable. child or until the years, ten or fifteen Slemons, Hutchings Court stated being at home. dependent parent on a so (1943): 448,174 Tex. S.W.2d 487 be a contract cannot O’Farrill asserts mu- Though contract void for lack of unclear parties is one of the enforced when made, tuality and while it at the time it is on its duration. executory, yet, wholly when there remains terms is certainty contract The law by part performance has been even a to derive anything It is difficult but certain. same, party seeking to enforce the law. Courts the case guidelines from clear part performance party such has ren- such that a the notion pay lip at least service expense con- services or incurred dered reasonably to be certain must be contract parties at the time such templated Delgado, 406 See Bendalin enforceable. made, confers even a which contract (Tex.1966); University Nat’l S.W.2d thereto, party remote benefit on the other Whinney, 773 S.W.2d Bank v. Ernst & equitable constitute an such benefit will writ). 1989, no Antonio —San consideration, con- and render the entire concern A fatal lack of definiteness tract valid and enforceable. paid, price to be performance, time for Hutchings, 174 at 489. done, to be ren the service the work to be argues dered, that Gonzá O’Farrill next transferred. property to be illusory, Bank, can promise is because she at 710. University lez’s Nat’l only at in the United States remain supply willing to Courts have also been illusory An government. mercy of the U.S. necessary to effectuate missing when terms to bind the promise promise that fails agree parties under the purposes of the *8 option of discontin promisor, who retains the Utility Dist. v. Coul Mun. ment. Lake LBJ Pipeline uing performance. See CRC-Evans 897, son, (Tex.App. 906 692 S.W.2d —Austin Int’l, 259, 263 Myers, 927 S.W.2d Inc. v. 1985), grounds, 734 S.W.2d rev’d on other 1996, no [1st Dist.] — Houston (Tex.1987). a duration The absence of 649 writ). promise to O’Farrill does González’s necessarily suggest does not term may it this definition. While not fall within an enforceable not enter into parties did government true that the United States be are incomplete agreements agreement; such González, is not relevant to might deport this (courts “routinely” See id. often enforced. alleged agreement. She under the her duties performance time for supply reasonable performance is perform unless is bound omitted). the When is when duration term impossible. rendered expressly dictat is not of a contract duration frequently will by agreement, courts two- ed the promise to O’Farrill was González’s agree intended the parties presume in that to remain the States promised fold: she time. Marshall for a reasonable ment to last forego pursuing her promised to and she
245 that, Marshall, on this find based (Tex.App.— tered school. We v. n.r.e.). testimony, the trial court espe writ ref'd This is uncontroverted Dallas a reasonable duration cially agreement true in where the have arrived at cases could contemplates party that one will make sub term. in expenditures or other investments stantial pleaded, testified That González performance. Lake accordance with Clear agreement was meant inconsistently, that the Co., v. City Water Auth. Clear Lake Utilities longer period of or for for a time last (Tex.1977). 385, 391 549 S.W.2d Upon change this outcome. lifetime does not implied reasonableness of the The missing, term finding an essential by circum duration term is determined “the term, only to con judge, in that is implying surrounding stances evidence situation parties reasonable to the sider what was parties subject and the matter under time the light at the of the circumstances
which the contract was executed.” Cheek v. made, agreement parties not what was (Tex. Metzer, 116 Tex. S.W. at the time of trial. is believe reasonable Comm.App.1927, adopted). opinion When in testimony on the conflicting González’s assuming parties a con meant for agreement suggests duration of the tended time, rely courts tract last reasonable agreement, was no but not that there upon in light what would be of the reasonable agreement simply did not include a dura parties at circumstances available tion term. Hall, time the contract made. was Hall (1957). 12, 16 precedent disregarding There is 158 Tex. testimony Beago González’s issue. Here, evi- the trial court had sufficient Ceres, (Tex.Civ.App.— made, agreement dence that an had been 1981, writ), the court [1st Dist.] Houston light especially parties’ perfor- of the separation agreement that a found mance, partial, agreement. full or of that time, ex-spouses to last for reasonable agreement sufficiently is This certain to be appellant’s claim that it was of spite of the enforced, parties’ and the duties are suffi- Beago, at permanent duration. detañed, ciently by as described González’s agreement’s 295. The held that the then, testimony.1 question, The is whether it not to suggested “intrinsic terms” that was had sufficient evidence on Thus, last there at some forever. Id. least which to at arrive a reasonable duration of implied term of evidence reasonable whether, performance, sug- as O’Famll duration, legal sufficiency faüs. claim gests, necessarily the contract was termina- sufficiency finding also survives factual at will. ble testimony regarding the claim: González’s find that the trial court had evidence of at of the circumstances in existence the time the circumstances at time and not so was uncontroverted baby. couple made. The Gonzá- had unjust. wrong or weak result as make the lez that O’Farrill was concerned that testified chüd have a full-time mother. Frauds Statute career, staying with had a home the chüd career, both sacrificing at O’Farrill next contends that would entaü least agreements of Frauds also testified that the fall within Statute for awhüe. González both, necessity, per could having a full-time mother concern about year.2 Tex. Bus. naturally en- within one & lessen when chüd formed would Com. 1987). (Vernon *9 course, 26.01(b)(4) § challenged the doc- Because 1. Of O'Farrill could have this partial performance applies both testimony very to the of a mutual trine of and existence agreements, appearing How- agreement by presenting and we need not reach this issue. at trial ever, ap- provision of this of the Statute Frauds of what the memorandum meant. his version plies agreements buy and land between to sell agreement agreement pur- purchasers. before the and 2. O’Farrill also claims owners agreement buyers simply us an between two the house have been in writ- was chase Inwood must purchase they delegate ing agreement as would the duties between it was real to how they purchased a them when home. See Tex. Bus. & estate. Com.Code Ann. 1987). 26.01(b)(6) (Vernon home, § al- pie’s and consideration. We have Code Ann. ready parol con- argument O’Farrill’s fails for reasons. determined that evidence on several duration, As sideration was admissible. for at There was sufficient evidence rely on we find the trial did not apply trial that of not the Statute Frauds did specific testimony on the duration González’s applied. that an exception to the Statute Instead, agreement. implied the the court of out, partial points performance As González duration, relying testimony a reasonable on removes contract the from the Statute regarding the circumstances at the time the Light Frauds. v. See Central Power & Co. implied An agreement was made. term does Dist., 782, Del Mar Conservation 594 S.W.2d parol proven by need to not be evidence. 1980, (Tex.Civ.App. writ Antonio — San out, Texas, employ- in points As O’Farrill n.r.e.). strong ref'd there evidence When calling continuing or suc- ment contracts application a of contract and of the Statute performance have been to be cessive held injure person relying Frauds would the (in words, unambiguous to duration other as party allow the un contract and other will). they may be at Clear Lake terminated benefit, partial performance earned will allow Auth., City at Water 549 S.W.2d 390. Under Co., remedy. Beltway Dev. Carmack analysis, parol evidence could not be no — Dallas agreement, be- supplement allowed to writ). Further, fully party where one has contradict the im- cause such evidence would contract, performed under a the Statute reasoning plicit duration term. Such would may party Frauds be unavailable to the other suggest also has no breach that González knowingly accepts if he and the benefits to cease claim because entitled O’Farrill performs. partly Id. payment so. he desired to do whenever fully per- González testified that she had However, reject we invitation to O’Farrill’s agreements. put formed her end of She beyond extend the the em- doctrine at-will $60,000 of money her own down on context, ployment especially there is where addition, house. In she in remained San evidence, extrinsic, upon both intrinsic career, pursue Antonio not and did finding duration can be which of reasonable agreed City agreement. the Mexico based. agree- partly performed O’Farrill on both First, $5,000 monthly ments. he made the testimony regarding As for Second, payments ac- for several months. home, purchase couple’s of the we note cording to testi- González’s uncontroverted parol oral. The evidence mony, paid monthly mortgage O’Farrill applies only agreements final rule whose years, Inwood home almost two writing expression are bind was made ceasing payments only when Gonzá- make Baker, ing contracts. Gannon against lez filed him. suit (Tex.1991) ap (parol rale evidence only jural writings); plies contractual pleading O’Farrill had burden of (Tex. Hanley, Litton v. proving applicability of the Statute writ) (“a App. Dist.] no [1st — Houston Although he Frauds. Tex.R. Crv. P. 94. by varied written instrument it, pleaded presented sup he evidence agreement”); of an evidence oral & Calamari port pleading of his failed to meet thus § at 3-2. Perillo his burden. Sufficiency Damages of Evidence on Parol Evidence error, fifth claims parol, point offered or extrin his sic, duration, legally, or three that the evidence was alternative- evidence on issues: concerning ly, factually cou- terms of insufficient 26.10(b)(2). argument provision. § Similarly, con- at This is O’Farrill’s cited See id. two; prom- surety agreement between the the oral tract falls within the statute because it is agreement simply ex-partner's differ- person to the debt of reflects ise another, one answer for purchase misreading ing joint a home. corporation, is a of the duties their their
247 (appellate P. 299 See Tex.R. Civ. $200,000 damages.3 in terests. court’s award findings, presume no element will not court explain calculation Judge Peeples did not his findings in the has been included of law. of which findings in of fact and conclusions his fact, a cause is $600,000 one element of on but where damages of the pleaded González found, may implied if there is ($5,000 for ten others agreement per month July 5 evidence); Brown v. $60,000 supporting see also years) pur- to agreement and on the Inc., Theatres, (the 301 put Frontier the amount she chase Inwood home (if (Tex.1963) home). findings susceptible of fact are on down the constructions, they con- will be to different that there is no evidence O’Farrill claims strued, harmony be in with the possible, if to $60,000 support to an award of on the house it). support to judgment and (assuming Judge Peeples or- this is what dered) foreclosed, the loan had been because that measure of find also a obligation no further on Gon- and there was damages reliance interests was based on pay mortgage. on the Because the zález no by Tex.R. Civ. P. 67. At tried consent. name, corporate any in home was held a debt object during trial O’Farrill that time did surplus or accrue to after foreclosure would $60,000 comport with requested did not Gon addition, findings corporation. In do pleading. zález’s breach of contract O’Far- not reflect that the value of González’s occu- post-trial request for addi rill’s motions —the pying year than home for more a findings of facts and conclusions of law tional accounted for. for a trial —also did not and motion new lodge a or point. did no- raise the O’Farrill Damages for breach of contract against the claim dam insufficient-evidence interest, protect three interests: restitution award, adequately put ages but this did not interest, expectation and an reliance inter any judge discrepancy the trial on notice §at 14-4. In est. CalamáRI & Perillo pleadings, proof, and put aggrieved party order in same findings. Tex.R. Civ. P. judge’s See position occupy he or she would if the other (any pleadings in defects are waived bench party fully performed, had of these each specifically pointed out to trial trial unless protected. A interests must be Id. signed); judge see also before must determine “what additions to the in Co., Sage Street Assoc. v. Northdale Constr. jured party’s prevented by have wealth been (Tex.1993) (stating 449 n. the breach what subtractions to his objection damages award that no-evidence by wealth have been caused it.” Mistletoe being ambiguity from prevent did issue Locke, Exp. City, Serv. Oklahoma Okla. v. consent, by objection tried did not — Texarkana ambiguity). plead refer to failure to writ) (citing 5 Corbin on Contracts (1964)). § damages party Where makes As for the on the contract for sub in preparation perfor monthly stantial investment support, González’s evidence existed performing agreement, mance a reasonable he for trial court determine damages have she is entitled to that investment re duration and award González period turned. Id. of time. $60,000 requested damages Findings of Law of Fact Conclusions pleadings; request we find to be a six, point
recover her reliance interests the contract. of error asserts that trial court found had committed reversible error breached, been and we infer that segregating contract claims finding encompasses recovery findings for reliance in- in his of fact and conclusions awards too, impossible Assuming, 3. The nature of the award makes it mains to be accounted for. Judge Peeples apportioned how $5,000-per-month figure determine ages. dam- to deter- he used the upheld together, He the two contracts remaining damages, damages mine he awarded Assuming Judge awarded both. regarding on the Peeples awarded González the full months, years or two and four months. home, $140,000 regarding the the contract re- *11 248 (Tex. Durst, 646, Hauglum argues
of law. González O’Farrill v. writ) (finding specifically App.—Corpus not no complaint waived this re- Christi appellant claim that trial failed finding separate waived questing on the claims awards, appel partly requested segregate to findings he additional of fact when request findings of lant failed to additional and of law. conclusions law). facts of and conclusions findings The are: relevant Findings Fact ERROR POINTS OF SEVEN- of NINE: FEES a. Two valid contracts existed between error, points these of parties. (1) factually legally claims there was or damages c. LOUISA GONZALEZ’S $25,000 to insufficient evidence JOS O’FARRILL AVI- ANTONIO fees; (2) attorneys’ legal award of there was $200,000. LA’S of contract breach are ly sup factually insufficient evidence to port attorneys’ appeal; fees awards Law Conclusions of (3) awarding the trial court erred judgment against Plaintiff a. should have attorneys attorneys’ fees when Gonzalez’s damages Defendant for her in the segregate attempt made to fees incurred no attorney amount and her of on other claims. González claims O’Far- fees as above. set forth properly preserve rill did error on the requested finding of O’Farrill’s relevant by seeking first verdict two claims a directed fact and conclusion of law states: through trial. a motion for new relief 1. That two items which Court deter- However, non-jury appealing from a when mines to be contracts which existed trial, preserve appellant required is not to Respondent between Petitioner and insufficiency. allegations legal or factual (1) July of: 1995 docu- consisted Those be raised for the first time claims ..., Tex.R.App. ment the court determines which 52(d) (Vernon appeal. See P. contract, Respondent to be which 1996) af (stating preservation required, promises per pay Petitioner trial, legal nonjury ter for factual and suffi year per year, and to see her once claims) by Tex ciency (replaced and modified (2) which Petitioner al- 33.1); Tex. Appellate as Procedure Rule leges R.App. existed between Petitioner Tex (stating former P. 33.1 comment whereby Respondent agreed the two 52(d) em Appellate is Rule of Procedure partnership purpose form with 324); bodied in Rule of Civil Procedure Texas realizing profit through making in- 324(a)(b). P. Crv. Tex.R. vestments.4 However, that the we find finding requested This does not com factually legally court it both had before error, point of port with O’Farrill’s which upon base the sufficient evidence which to segregate that the trial court’s failure appellate legal fees. As award of trial and impossible contract makes it two claims fees, attorneys representing for trial two damages. apportionment determine the contin forty-percent that a González testified finding requested O’Farrill’s asks attorney spe gency fee was reasonable. One identify two contracts but not to cifically figure forty-percent testified apportion the between them. award amount light small was reasonable money attorney up front and unequivocal: paid to the The law is it is incum in work request light of amount of upon appellants additional the “substantial bent recovering the findings they on a if volved in sums due contested issue desire plaintiff.” Arthur & Co. findings. Supply Flintkote See Andersen such See Co. (Tex.Civ. Perry Corp., Thompson, Equip. (Tex.1997) writ); should be (attorneys’ fees awards see also
App.—Beaumont agreement. findings each remaining requested consideration found for detail 4. *12 $15,000 account, that he believed reasonableness, he stated of not on evidence on based that, He also testified be reasonable. party and his or would an between the Supreme go Texas on in the case review should attorney). note also that We $7,000 excessive, Court, $5,000 to would be ing attorneys’ fees are another whether attorney cross-exam- required. look at the entire O’Farrill’s this is authorized to court ex- record, testimony regarding the witness’s including and the witness ined City filing attor- controversy. appeals. in Dallas O’Farrill’s perience amount in of Arnett, 942, (Tex.App testified that ney 762 957 the stand and S.W.2d then took . —Dal denied). appeal an appellate las writ fees for reasonable $1,500, and another be this court would attorneys as to also testified Gonzalez’s Supreme Texas $1,500 appeal to the for an hourly they fee what believed a reasonable Court. credible, legally This sufficient was. was Further, it uncontroverted evidence. was testimony raised fact conflicting This sufficiency factual O’Farrill. It survives a judge issue, by the trial which was resolved challenge. appellate fees he awarded when $5,000 for and an to this court appeal for judge attor- The trial awarded González’s supreme court. This the state appeal to $25,000, neys the total percent of 12.5 requested less than amount was somewhat suggests the court award. This award that attor- great deal more than O’Farrill’s and solely did not award fees based on evidence (hold- neys argued See was reasonable. id. of an González and her between conflicting testimony fact is- ing that raised attorneys, as but instead took such factors sue; accept obliged one fact finder was reasonableness, expended, and com- effort other). Legally expert’s testimony over the account, plexity of the case into court judge evidence was before the trial sufficient Andersen, was do. mandated to See Arthur base decision. We on which he could this (discussing 945 at con- S.W.2d 818 factors to great say against cannot the award so determining sider when of reasonableness manifestly weight to be of the evidence as fees). competent, there Because was uncon- appellate of unjust. affirm the award We issues, testimony on these find troverted we attorneys’ fees. supported by legally be award to Arnett, factually sufficient evidence. 762 See point, The that fees were not third (upholding at S.W.2d award that was segregated, In Concrete is waived. Southern range testimony). within of Inc., 775 v. Metrotec Fin. S.W.2d Co. writ), (Tex.App. challenges O’Farrill also the court award —Dallas attorneys trial, appellate nonjury of if the fees. After both sides “[I]n stated: rested, judge upon the trial invited González’s at awards a fee based evidence of services segre torneys proof appellate have spent offer of their attor or time that should been neys’ not, party attorneys gated opposing fees. One of the for must Gonzá but was that, opinion, object by post- lez testified his reasonable the trial court’s error appellate ranged urge error fees motion in order to Concrete, $25,000, depending complexity appeal.” on the of on Southern case, taking seg- makes of issues. this those factors into at 450.5 O’Farrill no mention contention, that, disagree appeal 5. We with O’FarriU's on claim this court was on torts, 52(d), rehearing, Rule involved motion former some of the unsuccessful claims recovered, attorneys’ be now reflected in Texas Rule of Civil Procedure fees cannot for which segregation However, brought appeal allows this error to he even if mandated. rule, reject preservation necessary, the first time. former which is were we would substance, expression spe attorneys did clearest of the rule’s ex- One González's claim. excluding legal sufficiency cifically empts complaints work done and factual state that she Kehoe, complaints adequacy inadequacy on a collateral case. See Bullock general damages requiring preser- rule [14th Dist.] from — Houston n.r.e.) (where segregate only record vation error. Failure fees must writ ref'd shows spent preserved. reject O'Farrill’s claim that nominal amount of time and effort claims, award, supports point of error can be characterized as evidence unsuccessful sufficiency point. though segregated). even fee claims were not evidence O’FarriU's regating claims for fees motion for new POINT ELEVEN CONCLUSION: his point. ABUSE OF DISCRETION trial. We overrule error, final claims point
In his abused discretion POINT OF ERROR TEN: INTEREST his entering judgment against him. APPELLATE ON FEES *13 error, point of this discretion. We find abuse of setting claims that the court erred judgment of reviewing a for abuse When judgment date of as the date on which inter discretion, appellate court determine must appellate attorneys’ begin on est fees should acted trial court without refer whether argues appeal to run. O’Farrill that i.e., any guiding principles; rules and ence begin appeal not is this does until arbitrarily if the trial court acted or unrea perfected, so interest should run from sonably. Aquamarine Operators, Downer v. Similarly, date on the forward. interest (Tex.1985). Inc., 238, 241-2 Had Supreme award for not Court fees should (or any a better defense O’Farrill raised begin running a writ is filed. until of error defense), this out case have turned any way it But in the did. absence González cites two cases that controverting any pre evidence or law argument beginning O’Farrill’s date findings of conclu clude the court’s fact and appeal should be South the date is taken: law, his did not abuse sions Vollmer, western Bell Co. findings making in favor of Gon discretion (Tex.App. Corpus de Christi writ — zález’s claims. Beard, nied); Republic Nat’l Ins. Co. v. Life (Tex.Civ.App. 859-60 — San judgment affirm reformed. n.r.e.). However, Antonio writ ref'd precedent argues applying González dissenting Concurring opinion would lead to an unfair result. If O’Farrill DUNCAN, J. appeal had elected not to or had won out, provi appeal, points González remittitur DUNCAN, Justice, concurring and protected him from accru sions would have dissenting. ing appeal if interest. But O’Farrill waits to (only) majority’s judgment I concur (a own), entirely decision his could González part damages it insofar as affirms that could lose some months of interest. O’Farrill representing arising loss out Gonzalez’s drag process appellate out for some I payment the house. down keep having pay months order to from dissent, however, majority’s judg- from the interest, nothing and there is ment insofar as it affirms an award can do about it. pay alleged breach period On a month for some of time. appellate fees Since the award of record, I it is state of do not believe failure appellant’s must be on the conditioned remotely possible to “understand what level, appellate Haynes at the & Boone promisor Stanley T.O. Boot Co. undertook.” Bouldin, Ltd., Bowser S.W.2d Paso, 218, 221 v. Bank El 1993), Antonio rev’d on other — San 1992). (Tex. (Tex.1995), it is grounds, 896 S.W.2d attorney’s appellate clear that interest on directly to be connected
fees intended appeal. Gon pursuit of an unsuccessful money yet interest on
zález cannot collect Therefore,
owed. we reform the appellate interest on
below reflect per appeal will run from the date
fees
fected.