*1 recovery attained. [Cita- tionate principle applies This HOSE,
tions omitted.] TAYLOR-MADE here. INC., Appellant, Because no controverts the fees necessity reasonableness and of proven by attorneys, Itz’s if understand we Lynne WILKERSON, Appellee. argument correctly, we
Wal-Mart’s are No. 04-97-01025-CV. the amount of fees left decided whether by the jury assessed unreasonable as Texas, Appeals Court of of comparison matter of law amount Antonio. San of for damages recovered Itz. Itz total sum of recovered April $232,330.18 plus interest. post-judgment by jury The amount found attor $122,058.75.
neys’ Among fees was other
factors, jury expressly instructed “the consider amount involved and “the general, rea
results obtained.” fees, attorney’s of the recov
sonableness ...
ery by which is authorized statute question of fact for the [trier fact].” 19, 21
Bocquet Herring, fees of less jury attorneys’ assessed recovered, Itz damages
than half the but not dispositive.
that factor alone is We in light consider entire record
should charge and the com- factors experiences lawyers
mon knowledge and judges.
We have the record of the two reviewed disagree with Wal-Mart’s
week trial simple is a sexual “[t]his
assessment Nothing suggests
harassment case.” necessity or
want of reasonableness attorneys
work Itz’s performed attorneys’ assessed
the amount fees holding no basis for jury. We find aas
attorneys’ disproportionate fees award $232,330.18 Itz
matter of law the recov- attorneys’ hold the
ered. We therefore supported by legally
fees award
factually evidence. sufficient error, we affirm
Finding no reversible judgment.
the trial court
Randy David Gathany, Rogers, W. Law Antonio, Offices of Dave Rogers, San for appellant. Saldana, Jones,
Judith Ramsey Kurth & Andrews, Antonio, for appellee. San HARDBERGER, Sitting: PHIL Chief Justice, RICKHOFF, Justice, TOM Justice, LÓPEZ, ALMA L. CATHERINE STONE, Justice, GREEN, PAUL W. Justice, DUNCAN, Justice, SARAH B. ANGELINI, KAREN Justice. granted Taylor-Made Hose’s motion ON MOTION FOR RECONSID- banc, en with- reconsideration and we now ERATION EN BANC panel opinions, draw the reverse the trial Opinion DUNCAN, by: B. SARAH and remand the judgment, cause Justice. for further proceedings consistent with *3 opinion. Hose, Taylor-Made appeals Inc. tri- al judgment against court’s it in BackgRound and Procedural Factual against Lynne Wilkerson,
its collection suit guarantor Transit, for North American Transit, applied North American Inc. submission, original panel Taylor-Made Hose, On af- Inc. for a credit ac- judgment. firmed the trial upon applica- Howev- count. The form which the er, majority reproduced of members of this court tion was made below full: proceeding, Taylor-Made Hose filed a
After North American Transit failed to “Lynn bankruptcy against and filed a sworn account suit Wilker- its account son, for, correspondence certain Guarantor and the credit agreement, “ap- stated alleged Inc.” which Wilkerson peared] copy a true to be and correct special request that “at the instance and my application signed capaci- Defendant sold and [it] delivered Defen- ty as Vice-President of American North buyer, dant as course regular Transit, Inc.” business, wares, goods, and merchan-
dise, performed the services shown Taylor-Made Hose responded A],” Exhibit [the invoices attached as credit agreement itself established Wilker- [Taylor- “Defendant indebted to affidavit, liability. supporting son’s $22,790.56, Made in the total Hose] sum Taylor-Made Hose it alleged extended systematic according to such accounts con- credit to North Transit “based *4 tained in Exhibit.” such personal guarantee Lynne of Wilkerson. If Ms. had not Wilkerson been answered, liability denying Wilkerson willing to guarantee then capacity in which sued. she was Wilk- the company willing would not have been erson executing guaranty further denied a Taylor-Made extend the credit.” in her capacity alleged individual supported response with the affidavit of every “each and item in the account is not Taylor, Don of Taylor- President and CEO just true, just and all and lawful off- Hose, copy applica- Made a sets, payments and credits have not been tion, copy petition, together a of its with allowed.” pled Wilkerson other defenses invoices, copy the attached and a of Wilk- well, including as that the debt had been object- erson’s After answers. Wilkerson discharged bankruptcy, failure of con- ed to supporting Hose’s sideration, mistake, payment, material al- proof, it filed amended an affidavit. Wilk- contract, teration of the the absence of a objected well, erson to this affidavit but contract, ambiguity. sup- Wilkerson there is indication in record ported her amended answer with her affi- objections. trial any court ruled on of her davit. Ultimately, trial granted Wilker- Several after answering, months Wilker- motion, son’s stating ground without a son filed a summary motion for judgment its ruling, take-nothing and rendered a pursuant 166a, to Rule Tex.R. Civ. P. In judgment against Taylor-Made Hose. motion, her Taylor- Wilkerson alleged
Made Hose had “no that: evidence AND STANDARD SCOPE REVIEW OF (1) agreement this is a guaranty; indeed adequate “After for discov time (2) Lynne signed Wilkerson her ery, party presenting a summary without capacity; individual judgment may for summary evidence move
(3)
judgment
ground
Lynne
that there is no
Wilkerson
hable indi-
any
debt;
[specified]
evidence of
or more
vidually for
one
essen
tial elements of a claim or defense on
(4)
Hose,
Taylor Made
clearly
Inc. knew
the adverse
have
would
dealing
corporation,
that it
with
a
burden
proof
trial.” Tex.R.
P.
Civ.
not an individual.”
166a(i).
grant
“The
court must
[trial]
166a(i).
P.
Tex.R. Crv.
Wilkerson also
respondent produces
motion
unless
alleged there was no
of a contract
evidence
summary judgment
raising gen
evidence
against
individually
enforceable
her
be-
uine issue of material fact.” Id.
cause
no writing
there was
her
and,
in her
capacity
in any
appeal,
summary
On
we review a
event,
discharged
had been
Corporativos,
debt
de novo. Valores
Co., Inc.,
North
bankruptcy.
American Transit’s
S.A. de
v. McLane
C.V.
supported
Wilkerson
her motion
her S.W.2d
Antonio
— San
denied).
affidavit,
copies
to which were attached
Accordingly, we will
uphold
summary judgment
a traditional
ous and the court will construe
[it]
if the
judgment record es matter of law.” Id. at
A contract is
a genuine
tablishes
absence of
issue of
meaning
un
ambiguous only “when its
fact, and the movant is entitled to
material
reasonably
certain and doubtful
it is
judgment on a
set
ground
forth
susceptible
meaning.”
more than one
uphold
And
the motion.
Id.
we will
Id.
only if the
summary judgment
no-evidence
As
stated
summary judgment record reveals no evi
affidavit, Lynne
attached
Wilkerson
“(a)
i.e.,
element,
challenged
dence of
“personally agreefd]
invoices
absence of
to the
complete
[as
any
... on
amount re
cost of collection
(b)
element];
challenged
the court
unpaid
maining
days”
after
North
of law or
evidence from
barred
rules
open
Tay
account with
American Transit’s
giving weight
evidence offered
This
is not in
lor-Made Hose.
element]; (c)
prove
challenged
[the
respect
ambiguous. By agreeing
prove
challenged
[the
evidence offered
“personally
pay”
...
scintilla;
is no more than a mere
element]
account,
delinquent
Transit’s
(d) the
establishes conclusive
[or]
made herself
liable for the cor
ly
opposite
[challenged
of the
ele
*5
poration’s debt. See Tex. Bus. & Com.Code
Calvert, “No
Robert W.
Evi
ment].”
”
”
3.402(b) (Vernon
§
Supp.1998);
Aus
Ann.
dence
Evidence
“Insufficient
Hardwoods,
Berghe,
v.
tin
Inc.
Vanden
361,
Error, 38 Tex. L.Rev.
Points
362-63
320,
Paso
917
323
S.W.2d
(1960).
deciding
In
whether
— El
1995,
denied);
v.
Na
writ
Eubank
First
raises a
genuine
record
issue
judgment
Bellville,
130,
S.W.2d
tional Bank
814
fact,
view as true all
material
we
1991, no
(Tex.App. Corpus
133-34
Christi
Valores,
respondent.
945
favorable
—
writ);
Bryan,
v.
Co.
at 162.
S.W.2d
Petrofina
484,
(Tex.Civ.App.
486-87
— El
Discussion
1975, writ); Marx,
600;
43
Paso
S.W. at
v.
H. Banks Ware
accord Owens William
Taylor-Made
argues
Hose
(5th Cir.)
houses,
689,
F.2d
693
202
application “unambiguously
credit
estab
denied,
law),
(applying Texas
cert.
346 U.S.
a personal guaran
to be
lishes Wilkerson
(1953).
74 S.Ct.
We therefore reverse trial With the below I accept the judgment and remand the fur- cause for AND Mowing TERMS CONDITIONS proceedings opin- ther consistent with this of a Credit Account: ... ion. I, personally agree in- voices and cost of collection including, Dissenting opinion by: ALMA L. fees, but not limited to agency collection LÓPEZ, Justice, joined by PHIL costs, attorney’s and reasonable HARDBERGER, Chief Justice. fees on remaining unpaid amount days. after 90 Dissenting opinion without by: STONE,
CATHERINE Justice. Lynne OFFICER’S NAME: TITLE: Vice-President LÓPEZ, Justice, dissenting. SIGNATURE OF OFFICER:_/s/ stroke, In a strikingly bold majority Lynne Wilkerson DATE: 7-21-94
greatly expands the law of guaranty to Taylor-Made that, alleges any poorly-worded favor attempt by a basis of this credit “guar- entity business to hold employee antee,” it extended credit to North Ameri- officer of a customer business and, can from December 1995 liable for credit extended to company. through January delivered merchan- years After holding contrary, $22,790.56. totaling dise April law in Texas now suddenly has swung “Lynn Wilkerson, sued *6 [sic] favoring from obligor, to favoring the Transit, as Guarantor for North American obligee. Inc.”1 Taylor-Made appeals Hose a take-noth- (1) Wilkerson a filed verified denial that ing judgment based on a no-evidence mo- she was not liable in capacity in which tion for summary judgment Wilkerson (2) sued, she had been and denied the pursuant filed to Texas Rule of Civil Pro- (a) account because she did not execute 166a(i). cedure majority The opinion of any guaranty in capacity her individual August 1998 affirmed the trial court’s (b) just offsets, and that all and lawful judgment. banc, rehearing On en the ma- payments and credits had not al- been jority reverses the no-evidence summary pled lowed. She further that this debt had judgment favoring goes Wilkerson and fur- been in discharged bankruptcy and other ther to find that she is personally liable for defenses not relevant to appeal. this the debt of her employer. former I re- spectfully dissent. In October Wilkerson filed mo- tion summary judgment for under the new Background
Factual and Procedural no-evidence judgment rule. See Taylor-Made 166a(i) (eff. 1997). Hose impose per- seeks to P. Sept. Tex.R. Civ. liability sonal on motion, Wilkerson for a debt in- In this Wilkerson asserted that curred as a application result of an Taylor-Made for Hose had no evidence that (1) credit on (2) behalf of North American Tran- guaranty, this was a that sit, Inc. The application provid- credit form Wilkerson capaci- her individual (3) by -Taylor-Made ed required general ty, that individually Wilkerson is liable on and, (4) information the business and any addition, asked for for of this debt Although guaran- guarantor. Wilkerson is named as a petition tions that she is a The style plaintiff's original petition, merely tor in the describes the debt of North American petition allega- any itself does not contain 9, 1997, knew it deal- trial court Taylor Made Hose that was On October Taylor-Made Hose ing corporation, granted with a not an individual. a continuance it permit to file an amended affidavit response to Taylor-Made Hose filed a by Taylor. Taylor-Made Hose amended summary judgment the motion for Taylor filed with at- affidavit presi- it attached affidavit tached invoices and CEO, Taylor Taylor. dent and Don Mr. filed on October 1997. Wilkerson stated: objections written to the amended affida- 17, 1997 vit on October 16. On October My company extended credit to North argument trial grant- court heard Transit, Inc., based favor of ed Wilker- guarantee Lynne Wilkerson. timely son. filed a motion willing If Ms. had not been appeal. for new trial and a notice of The personal guarantee then motion new trial was heard and denied company willing would not have been January on anticipated extend the credit.... [W]e Lynne person-
that Wilkerson would be Standard Review responsible ally for these invoices. previously, As this Moore v. court stated unveri- Taylor-Made Hose attached also Corporation, K Mart copies application, the credit fied Antonio writ de — San invoices, petition and the re- original nied): “A summary judgment no-evidence maining pleadings file at time. verdict,” essentially pretrial directed legal sufficiency we apply the same reply response Wilkerson’s reviewing sum standard no-evidence objections as- separately-filed evidentiary mary judgment apply reviewing as we Taylor’s that Don affidavit was not serted review directed verdict. We the evidence incorporated into the re- by reference respon light most favorable to the and, therefore, consid- sponse could not be against sum dent whom no-evidence Further, proof. affidavit made ered rendered, mary judgment disregard exhibit, nor reference attached contrary evidence and inferences. appli- did affidavit state point “A no evidence will sustained be copy cation was of that a true correct *7 (a) complete a when is absence there objected that document. Wilkerson also (b) fact, of a the court evidence vital Taylor prove the failed to that she affidavit or from by law evidence barred rules of in individual signed any had document weight only offered giving capacity. Lastly, Wilkerson asserted (c) fact, of prove a to vital the evidence response the attached the fail invoices prove than a vital fact no more fered prove owing due and for more a debt (d) scintilla, a mere the evidence conclu Wilkerson,2 by or that all days than 90 sively opposite the of the vital establishes to a precedent conditions suit on a sworn Pharmaceuticals, fact.” See Merrell Dow met. of these account had been None (Tex.1997), Havner, 706, Inc. v. 711 953 S.W.2d summary in proper were attachments denied, 1119, 118 rt. 523 U.S. S.Ct. ce form. further ob- judgment evidence She (1998). 1799, 140L.Ed.2d 939 jected specificity all the 166a(i) Moreover, in- Taylor concerning affidavit “[t]he Rule states constituting grant self- parties tent of must the motion [for produces respondent an serving judgment] interested unless statements controvertible, gen- a raising readily were con- not fact.” of material Under inadmissable uine issue hearsay, tained were rule, fact is to our a counterpart federal conclusions. n.2, supra. 2. See guaranteed signing only by
“material”
if it affects the outcome of
application.
the suit under the
law. See
id.
323. The exact
governing
See
Lobby,
Liberty
appeared
Anderson
U.S.
this feat
language accomplishing
(1986).
line,
106 S.Ct.
Discussion guarantor, in personal capacity). his Appellant single point raises a of error Appellant support also seeks &Gulf whether, law, as to as a matter of Buchanan, upheld Basco which Co. v. a signature of a corporate following officer corporate trial court a finding that officer the language on corporation’s credit signed was not liable when he his name application, “I agree all a “guaranty agreement” without indicating invoices and costs of collection ... on capacity. his title or amount remaining unpaid days,” after 90 S.W.2d 655 [1st Dist.] — Houston personal sufficient to guaranty constitute n.r.e.). During writ refd a bench corporation’s debts. trial, the court had declared document It is well single provision settled that no ambiguous testimony to ex admitted instrument, alone, in an given taken will be plain ambiguity. manager The office Rather, controlling provisions effect. for Gulf & that he Brasco testified under must be considered with reference to the stood Buchanan indi to have his Coker, whole instrument. Coker v. See 650 vidual capacity. Id. at He also stat addition, S.W.2d 391 ed that policy it was Gulf & Brasco’s guarantor occupies position a favored grant personal guaran without the law requires this court to con Although tee. Id. at 659. & Brasco Gulf strictly strue a guaranty favor of the statement, requested financial guarantor. McKnight v. Virginia *8 Buchanan provide did not one and the Co., (Tex. 428, Mirror 463 S.W.2d 430 opened account apparently solely was 1971). corporate the basis of credit and that
In arguing
quoted
language
years.
the
is
credit was extended for six
Id.
accountable,
sufficient
signer
to hold the
Buchanan
he
testified that
in his
appellant
corporate
relies on a case from the El
capacity
Paso
and did not intend to
Appeals bearing
Court of
remarkably
corpo
simi bind
himself
the
Hardwoods,
lar facts. See Austin
Inc. v.
rate account.
Id.
the basis of this
On
(Tex.
Vanden
trial
Berghe,
conflicting testimony,
where
we are
Wilkerson
application
capacity
vice-presi
objective
in her
as
give
effect to
intent of
application
pro
parties
expressed
apparent
not
dent. The
does
even
as
in
sign
writing.
Exploration,
for
Westwind
vide
blank
one to
See
378,
’n,
capacity.
It
696
requests
another
v. Homestate Sav. Ass
S.W.2d
(Tex.1985);
at
provides
signature.
Praeger,
an “officer’s”
721
for
382
S.W.2d
To
for
agreement
review the credit
What the
& Basco decision does
Gulf
purpose
true
giving
effect to the
out, however,
in
point
appellant urges
parties
agreement,
intention of both
rehearing,
although
its motion for
is that
at
agreement.
we must
look
the entire
parties have argued
both
that the
Basco,
The
&
707
at
S.W.2d
Gulf
at issue
both sides have
unambiguous,
is
body
in
case
of the credit
this
presented
evidence
itself
seeks information on the business
impliedly
ambigui
the issue of
raises
and, in particular, seeks bank references
ty.
ambiguous
is a
Whether
document is
corporate entity,
for
for the
not
657;
v.
question of law. See id. at
Tuthill
signs
application.
officer who
Unlike
Co., 614
Southwestern Public Service
guaranty agreement
reviewed Aus-
205,
(Tex.Civ.App.
— Amarillo
Hardwoods,
clearly
tin
which was
intended
n.r.e.).
1981,
Moreover,
writ ref'd
where
used
multi-purpose
as a
form that could be
ambiguity is raised for the first time on
corporations, partnerships,
for
or individu-
is a
appeal, construction of
contract
tai-
applicants, Taylor-Made’s
al
form is
Praeger
law for
question of
the court. See
for
entities.
applicant
lored
business
Wilson,
(Tex.App.-
721 S.W.2d
type
entity applying, and
can check the
n.r.e.);
Fort Worth
writ ref'd
Com
“corporation”
is
this case the blank after
munity
Parts
Replacement
Dev. Ser. v.
officers,
checked. The names of
Mfg.,
(Tex.App.-Hous
679 S.W.2d
bank,
of the
and other credit references
writ):
ton
v. Con
[1st Dist.]
Sale
corporation
provided
required.
are
No
(Tex.Civ.
Corp.,
tran
486 S.W.2d
is
offi-
requested
credit information
n.r.e.).
App.-Dallas
ref'd
An
Only
application.
cer who is to
simply
be
ambiguous
instrument
requested.
title
her
inter
parties disagree
cause
over its
(Delaware)
beyond
itself to
Looking
Co.
the document
pretation. See Sun Oil
surrounding
its execu-
626 S.W.2d
the circumstances
Madeley,
tion,
600-01,
we
case,
Praeger,
neither
that the
see
721 S.W.2d
this
claimed
summary judgment
be
evidence.3
ambiguous
while
turn
key
concerning
am
Appellant
Appellant’s
raises
fore the trial court.
a cor-
intent of
bind
biguity for the first time
its motion
Therefore,
capacity
may
porate
con
officer
the court
rehearing.
through
affidavit
a matter
law. See was offered
the amended
strue the contract as
specifically and
Praeger,
Taylor.4
of Don
493
objection
if
strenuously objected writing
preserve
to all state-
on an
to
error
ments
to
an intent
to
tending
implicit
establish
court’s find
ruling
guar-
hold
See,
Julian,
Wilkerson
liable as
e.g.,
ings.
Blum v.
977
antor.
no
Although the record contains
819,
(Tex.App
S.W.2d
823
Worth
. —Fort
ruling
objections
written
to
order
writ)
1998,
(granting summary judg
no
plaintiffs
response
amended affidavit in
to
implies overruling
ment
of non-movant’s
the motion
judgment,
affidavit).
objections to
effect of the
The
court’s
of a
granting
summary judgment
implicit
ruling
court’s
is that
objections
creates an
that
inference
presented
Hose has
no evidence on the
Tex.R.App.
were
sustained.5
See
P.
to
genuine
issue of intent
raise a
issue of
33.1(a)(2)(A); Salinas
v.
948
Rafati,
material fact. Because
is a no-evi
this
286,
(Tex.1997);
Yu,
S.W.2d
288
Frazier
ruling, if
dence
the trial “court is barred
607,'610
987
(Tex.App.-Fort
S.W.2d
Worth
of law
from giving
rules
or evidence
denied).
1999,writ
prove
weight
to
an
evidence
2(A)
Subsection
is a
revi
substantive
element, summary judgment
essential
33.1(a)’s
sion
predecessor,
to Rule
Rule
Tex.R.App.
166a(i)
proper.” See
P.
&
52. This addition relaxes
re
the former
Havner,
cmt.;
953 S.W.2d at
quirement
express
of an
ruling, and
Furthermore, Taylor-Made Hose has
consistent
case
holding
law
that an
right
complain
waived
about
appellate
presume
can
court
the trial
ruling
on
judgment
sustained
overruled a motion or
evidence. ‘Where
has been held
objection
an
in certain circumstances.
holding
be inadmissible and that
has not
Salinas,
(finding
pendent ground or aggrieved assign must to each ground, error will affirmed be
ground complaint to which no is made. Bailey Rogers,
See 1982, writ); no Hudson — Austin Markets, Super v. Buddie’s Farms, Charles FOUST and McDaniel (Tex.Civ.App. 147-48 — Fort Inc., Appellants/Appellees, 1972, writ). no In Worth addition to the alleged issue concerning guarantee, Wilkerson also asserted there is no WALTERS, ESTATE OF Roland De evidence that an enforceable contract was ceased, by through its Co-Inde formed between Hose and Executors, pendent Corey Walters
Wilkerson, Indeed, individually. there is Walters, Rolinda Walters Farms d/b/a no evidence of a signature Rusty’s and Russell L. Lindeman d/b/a capacity before the court. Flying Service, Appellees/Appellants. 3.402(b)(1) § Tex. Bus. & Com.Code (Vernon (where No. 04-98-00639-CV. Supp.1999) signature shows unambiguously that the Texas, Appeals Court of represented person, made on behalf of rep San Antonio. liable). Taylor-Made resentative not did respond with evidence below or chal April lenge any grounds appeal. of these reply rehearing, Taylor-Made brief on argues obligation that it had respond
in order to defeat a no-evidence motion issue,”
other than to the fact “raise Taylor’s
rests on Don affidavit that credit
was extended and shifts to the bank then
ruptcy supplied through Wilker summary judgment, argu
son’s motion for