*1 jurisdiction, maritime have no in rem being exclusively a matter for the WORLEY, Appellant,
rem Robert Jean courts. federal majority reach While the conclusion the BUTLER, Jr., Appellee. Oliver es, may have mari federal courts No. 13-89-440-CV. jurisdiction complete rem
time in Texas, Appeals courts, Court of may exclusion of the state be cor Corpus rect, Christi. supported by that conclusion not by majority nor cases cited Dec. question by party. either The two briefed Corp., cited cases are: Durden v. Exxon (5th Cir.1986),and
803 F.2d T.N.T. Serv., Shipyards
Marine Inc. v. Weaver & Docks, Inc., (5th
Dry F.2d
Cir.1983),
denied,
847, 104
cert.
464 U.S.
(1983). In
S.Ct. plaintiff brought action
ease the sound
ing jurisdictional in two bases for the Fed citizenship diversity
eral District Court: jurisdictional
and maritime. Each base
gives procedures rise to different and laws. diversity applicable
On the side the sub law is the law of the state and one
stantive by jury. to trial When one sues entitled side, admiralty
on the the federal substan prevails
tive maritime law right jury to a maritime
traditional in both cited
cases. Fifth Circuit held' plaintiff chooses sue
cases that when the rem, jurisdiction
a vessel in exclusive diversity.
is maritime and not neither question state
case was jurisdiction had over a vessel.
court point error
In the absence of a before challenging may court
us whether a state jurisdiction over a
exercise in rem vessel briefing, I am reluctant to appropriate join majori- do
so hold. therefore may
ty in conclusion that Texas court its over jurisdiction a ves-
not exercise in rem the maritime
sel under
Butler, Jr., appellant, J. Wor- sued Robert $22,866.26 ley, legal fees and sought reason- expenses, and he also prose- attorneys’ fees incurred able appeal of this suit. cution and and filed a answered the suit counterclaim legal malpractice. The against Butler for granted partial summary judg- trial court Worley’s ment favorable to Butler on coun- terclaim, granted summary judg- and it ment favorable to Butler on his suit only fees. This concerns But- summary judgment pertaining (Butler’s ler’s suit for sec- motion). By a sin- ond error, gle point Worley complains the trial court erred in Butler’s second motion. We af- judgment. firm the trial court’s December, alleges Butler’s suit that in represent Worley in his against Company. lawsuit Shell Oil provided De- legal services to cember, 1982, through September, 1985. Worley paid legal fees from De- cember, 1982, through April, but he legal did fees from 1985, through September, 1985. Butler al- leges Worley still owes him legal recovery He demands fees. based account, upon quantum sworn meruit and express contract. He also demands that Worley pay legal him the fees incurred in prosecuting this suit. Watts, Co., Larry Lawyers, Watts & P.C., Houston, Steinman, Thomas L. Hous- alleges summary motion ton, appellant. proves genuine that no that the evidence material fact exists and that Butler issue of Schell, Fleuriet, Edwin R. Richard D. against Worley is entitled to Fleuriet, Franz, Roger & Schell W. matter Jr., Hughes, Hamby, Ferriel C. Adams & transcript proof includes a Graham, Harlingen, appellee. Worley given during the of Butler and NYE, C.J., Before and SEERDEN and trial,1 proof of Shell a demand letter and KEYS, JJ. receipt, and the affidavits of the Honorable Jr., Hamby, and the Honorable Ferriel C. OPINION attorneys. Roger Hughes, W. NYE, Chief Justice. trial that Butler testified Worley’s attorney in his lawsuit summary judg- This is an from a he was Company. His normal fee against Shell Oil Appellee, ment. the Honorable Oliver J. suit, Worley’s attorney’s Shell During Worley sought trial of the as an element Butler's ages. fees Worley of dam- favor. ended in Shell's concerning Butler and (De- in- Worley’s judgment evidence accepted Worley’s at case the time he original copy of his counterclaim. cember, 1982) cludes a was $125.00 December, 1982, through From granted The trial court 434.05 August, he billed $22,860.20in legal fees which judgment for *3 time; of attorney of 17.55 hours hours in trial he incurred Shell suit. The the hour;- legal per assistants’ time at $25.00 summary granted judg- Butler court also $7,433.00 Septem- expenses. in From and $11,210.00 attorneys’ in and ment for: fees 1, 1985, 16, 1985, through September ber prosecuting expenses for this suit in the time; attorney he of incurred 87.15 hours court; $7,500.00 appeal of this trial an and legal charges; in assistants’ $185.00 $2,500.00 appeals; suit to the court of $1,182.84 expenses. in Butler estimated application preparing responding or to an of at- thirty-six he would incur hours relating suit; that error this and for writ of to expenses from torney plus $2,000.00 time in suit the $300.00 of this to September judgment to the time a final Supreme 16 Texas Court. total opined entered. Butler that his error, point By single Worley of com a (ex- attorneys’ actual and estimated in plains that the trial court erred cluding appeals) fees for will be between second motion. Butler’s $80,000.00. He the fee and said record, reviewing a and
was reasonable
must determine whether a dis
this court
that
puted material
issue exists
would
fact
during
trial
the Shell
preclude
summary judgment.
a
Gonzales
represent
to
him
employed
that he
Co.,
Tex.Sup.
Ins.
33
v. Mission America
Company.
in
Oil
his lawsuit
6, 1990); Bayouth v.
(Sept.
Ct.J. 697-98
He
that
had
admitted
Co.,
867,
(Tex.
868
Lion
671 S.W.2d
Oil
and
travel
$125.00
1984). Every
inference must be
other
favor,
indulged
and
in the non-movants’
demand letter includes an attached
The
any
in their favor.
doubt resolved
Wilcox
month-by-
showing the
statement
final
589,
Univ., 531
593
Mary’s
S.W.2d
St.
unpaid
services
month
balances of Butler’s
(Tex.1975).
is not
question on
in
cash
advanced
expenses
rendered and
judgment proof rais
the
1985, through
the
Shell case
a
issue with reference to the essen
es
fact
indi-
September,
statement
1985.
final
plaintiff’s cause of
tial elements of the
$22,866.26.
unpaid
of
cates a total
balance
action,
whether the
but
item-
final
is an
Attached to the
statement
the movant is enti
proof
that
establishes
and
list of Butler’s services rendered
ized
as a matter of
tled
expenses
September,
cash
advanced
Corp.,
450
General Motors
Gibbs
(Tex.1970);
828
Tucker v. At
S.W.2d
Co., 787 S.W.2d
lantic Richfield
alleges
in order
Worley’s response
that
1990, writ de
(Tex.App. Corpus Christi
fees,
the
attorneys’
nied).
client. He con-
benefit the
services must
filed
undisputed
there is a fact issue whether
It is
that
tends
obtaining judgment
concerning
in
a
in the Shell
the correctness
efforts
a verified denial
his
a
He contends that
suit on a sworn account. When
are
benefit.
of Butler’s
suit
quali-
concern
hearsay,
it does not
files a verified denial
testimony is
that
a defendant
not
a
sworn
admission,
ing
plaintiff's
it is
correctness of
fy
judicial
and that
as a
account,
satisfies Rule 185
did
denial
argues that Butler
unequivocal. He
Procedure,
of Civil
this
of the Texas Rules
claim
prove
justness
destroys
evidentiary effect of the item
employment
attorneys’ fees because
petition
Worley’s ac-
ized account attached
agreement
prior
occurred
prove his
plaintiff to
claims.
forces the
contends that
He also
damages.
crual
concerning
Agency,
Ins.
Rizk v. Financial Guardian
controverting evidence
there is
(Tex.1979).
Inc.,
Since
attorneys’
584 S.W.2d
the justness of
ca-
denial,
statements
his individual
But made these
proper
a
verified
filed
801(e)(2),
According
Rule
Wor-
pacity.
at com
required
prove
his ease
ler was
hearsay.
testimony is not
Taylor,
ley’s prior
A.
mon law. Nichols v. William
Inc.,
(Tex.App
662 S.W.2d
. —Cor
re
Worley argues that in order to
writ).
1983, no
pus Christi
fees,
servic
cover
of action on
prevail
To
a cause
argues that
the client. He
es must benefit
(1)
account,
that
party must show:
a
sworn
ef
whether Butler’s
there is a fact issue
the mer
delivery
a sale and
there was
obtaining
forts in
services;
performance of the
chandise or
(Worley’s
him
suit are
benefit
(2)
just,
the amount of the account
that
favor.). The
ended in Shell’s
against Shell
is,
prices
charged
that
were
Worley employed But
evidence shows
*4
agreement or in the
with an
accordance
against
in his lawsuit
represent
to
him
ler
they are the
agreement,
an
absence of
agreed
and that he
to
Company
Shell Oil
usual,
prices for
customary and reasonable
hour, plus
and
per
travel
pay him $125.00
services;
(3)
or
and
that
that merchandise
accepted by
expenses. The case was not
Maintain,
unpaid.
amount is
Inc.
the
nor was
contingency
a
fee basis
Butler on
Inc.,
698
Maxson-Mahoney-Tumer,
Worley would
any stipulation that
there
469,
(Tex.App. Corpus
Christi
S.W.2d
—
if
the case.
pay
to
Butler
he lost
not have
n.r.e.);
1985,
Explora
ref’d
Hercules
writ
Worley argues that Butler has the bur-
tion,
Co., 658 S.W.2d
Inc. v. Halliburton
of his fees
prove
den to
the reasonableness
1983,
716,
(Tex.App. Corpus
Christi
only if
accomplish
can
this
and that Butler
n.r.e.).
plaintiff
the
ref’d
has
writ
Butler
proves that he was not careless.
he
through
prove,
competent
evi
burden
trial that his fees
dence, every
unpaid
item of the
account.
and
were reasonable
Maintain,
While *5 case, necessary I find majority in this it reasoning. separately clarify my
to write agree rejecting
I the contentions attor-
appellant that order recover fees, must
ney’s the services benefit way attorney only and that the
client establish that his fee is reasonable can LESIKAR, Appellant, L. Harriet majority, prove he was not careless. The however, by stating that after continues in the “Shell trial” that his
Butler testified RAPPEPORT, Jenny et Lou necessary, were reasonable and Wor- al., Appellees. that the fees ley had burden to show No. 6-90-020-CV. were only relevance of Texas, Appeals Court proceedings to these the “Shell trial” Texarkana. tes- Butler attached the verified sworn 23, 1991. Jan. timony part as of his evi- evidence. Butler’s Rehearing in Part Granted right dence is sufficient establish Opinion with in Part Overruled controverting summary judgment absent March Worley filed a by Worley. evidence While motion for reply appellee’s controverting no
judgment, he offered reply
summary judgment evidence. His and he offered no affida-
was not sworn to evidence.
vit the doctrine that a question
non-moving not resort to his party may inter moving party’s
own answers of a existence
rogatories proof fact, as an
genuine issue of material Horine, 695 S.W.2d
nounced in Walker Christi (Tex.App. Corpus In Ho- writ), this case. applicable therein, cited
rine and cases