Bocquet v. Herring

972 S.W.2d 19, 1998 WL 181081
CourtTexas Supreme Court
DecidedAugust 25, 1998
Docket96-1241
StatusPublished
Cited by1,481 cases

This text of 972 S.W.2d 19 (Bocquet v. Herring) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bocquet v. Herring, 972 S.W.2d 19, 1998 WL 181081 (Tex. 1998).

Opinions

HECHT, Justice,

delivered the opinion of the Court,

The Declaratory Judgments Act provides that in any proceeding under the Act “the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Pbac. & Rem.Code § 37.009. The question here is, by what standard is such an award of attorney fees to be reviewed on appeal.

Earl Herring and his wife sued two groups of defendants, the Boequet parties and the Weyel parties, for a judgment declaring that defendants were not entitled to access then-property by means of a roadway easement on the Herrings’ property. Defendants counterclaimed for a declaration of their rights and for tort damages. On cross-motions for summary judgment, the district court grants ed judgment for defendants and severed their claims for attorney fees and damages. The court of appeals affirmed in an unpublished opinion, and we denied plaintiffs’ application for writ of error. 37 Tex. Sup.Ct. J. 1180 (July 28, 1994). The defendants non-suited their tort claims, and the parties then tried defendants’ claim for attorney fees to the bench. The district court awarded $50,-000 to the Boequet parties, $45,000 to the Weyel parties, and $7,500 to all defendants jointly in the event the Herrings appealed unsuccessfully.

The Herrings appealed, arguing that the attorney fee award was an abuse of discretion, was not supported by factually or legally sufficient evidence, and was not equitable or just. While the appeal was pending, the Herrings settled with the Weyel parties. The court of appeals held that “[t]he standard of review is an abuse of discretion”, 933 S.W.2d at 613, that whether attorney fees are “reasonable and necessary ... must be decided by the fact finder”, id. at 614, that the trial court’s “findings are only to be disturbed if there is an abuse of discretion”, id., and that “both the time and the amount awarded to the appellees[’] attorneys [was] excessive”, id. at 615. The court reversed and remanded for a new trial unless the Boequet parties remitted $23,750 of their award. In so doing the appeals court appears to have sustained the Hennings’ second point of error complaining of the insufficiency of the evidence. The Boequet parties did not remit but instead appealed to this Court.

To determine the correct standard of review, we look first to the statute. The Declaratory Judgments Act does not require an award of attorney fees to the prevailing party. Rather, it provides that the court “may” award attorney fees. The statute thus affords the trial court a measure of discretion in deciding whether to award attorney fees or not. Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997); Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637-638 (Tex.1996); Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 444-446 (Tex.1994); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 398-399 (Tex.1989); Duncan v. Pogue, 759 S.W.2d 435, 435-436 (Tex.1988); Oake v. Collin County, 692 S.W.2d 454, 455-456 (Tex.1985). The same is true of other statutes that provide that a court “may” award attorney fees. E.g. City of Sherman v. Henry, 928 S.W.2d 464, 474 (Tex.1996) (applying Tex. Loc. Gov’t Code § 143.015(c)); Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex.1996) (reviewing fees in suits affecting the parent-child relationship under former Tex. Fam. Code § 11.18(a), recodified as § 106.002). Statutes providing that a party “may recover”, “shall be awarded”, or “is entitled to” attorney fees are not discretionary. E.g., D.F.W. Christian Television, Inc. v. Thornton, 933 S.W.2d 488, 490 (Tex.1996) (applying Tex. Civ. Prac. & Rem.Code § 38.001(8)); Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex.1997) (discussing “reasonable and necessary attorneys’ fees” under Tex. Bus. & Com.Code § 17.50(d)); Ragsdale v. Progressive Voters League, 790 S.W.2d 77, 86 (TexApp.—Dallas 1990), aff'd in part and rev’d in part on other grounds, 801 S.W.2d 880 (Tex.1990) (applying [21]*21former Tex. Elec.Code § 251.008, recodified as § 253.131).

The Act imposes four limitations on the court’s discretion. The first is that fees must be reasonable. In general, “[tjhe reasonableness of attorney’s fees, the recovery of which is authorized by ... statute, is a question of fact for the jury’s determination.” Trevino v. American Nat’l Ins. Co., 140 Tex. 500, 168 S.W.2d 656, 660 (1943). Accord: Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73 (Tex.1997); Snoke v. Republic Underwriters Ins. Co., 770 S.W.2d 777, 778 (Tex.1989) (per curiam); Great Am. Reserve Ins. Co. v. Britton, 406 S.W.2d 901, 907 (Tex.1966); Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155, 160-161 (1945); Johnson v. Universal Life & Accident Ins. Co., 127 Tex. 435, 94 S.W.2d 1145, 1146 (1936). The second limitation, that fees must be necessary, is likewise a fact question. General Motors Corp. v. Bloyed, 916 S.W.2d 949, 961 (Tex.1996). There are, of course, factors prescribed by law which guide the determination of whether attorney fees are reasonable and necessary. Arthur Andersen, 945 S.W.2d at 818 (quoting Tex. DISCIPLINARY R. Prof. Conduct 1.04, reprinted in Tex. Gov’t Code., tit. 2, subtit. G app. (State Bar Rules, art. X, § 9)).

The Act’s other two limitations on attorney fees awards are that they must be equitable and just. Matters of equity are addressed to the trial court’s discretion. Knebel v. Capital Nat’l Bank, 518 S.W.2d 795, 799 (Tex.1974); Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). So is the responsibility for just decisions. Murff v. Murff, 615 S.W.2d 696, 699-700 (Tex.1981); Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1005 (1950).

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Bluebook (online)
972 S.W.2d 19, 1998 WL 181081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bocquet-v-herring-tex-1998.