ACCEPTED
07-15-00252-CV
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
12/17/2015 9:22:28 AM
Vivian Long, Clerk
No. 07-15-00252-CV
FILED IN
IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS 7th COURT OF APPEALS
AMARILLO, TEXAS
********** 12/17/2015 9:22:28 AM VIVIAN LONG
JOHN H. CARNEY & ASSOCIATES, CLERK
Appellant
V.
ISHFAQ AHMAD,
Appellee.
**********
From the 324th District Court of Tarrant County, Texas The Honorable Judge Jerome Hennigan Presiding
APPELLEE’S ORIGINAL BRIEF Respectfully submitted,
P. Micheal Schneider
State Bar No. 24042911
Melissa K. Swan
State Bar No. 24049979
Schneider Law Firm, P.C.
400 E. Weatherford St., Ste. 106 Fort Worth, TX 76102
Voice (817) 850-9955
Fax (817) 769-3797
Attorneys for Appellee Ishfaq Ahmad
IDENTITY OF PARTIES AND COUNSEL
Party: Appellate & Trial Counsel: Appellant John H. Carney John H. Carney & Associates John H. Carney & Associates (Intervenor in Trial Court) 5005 Greenville Ave., Suite 200 Dallas, Texas 75206
Tel: (214) 368-8300
Fax: (214) 363-9979
johnhatchettcarney@gmail.com
Appellee P. Michael Schneider Dr. Ishfaq Ahmad Melissa K. Swan (Defendant in Trial Court) Schneider Law Firm, P.C.
400 East Weatherford St., Ste. 106 Fort Worth, Texas 76102
Tel: (817) 850-9955
Fax: (817) 769-3797
melissa@clientdrivenlaw.com Appellate Counsel for Dr. Ahmad
Donald Fulton
Law Office of Donald T. Fulton 227 North Sylvania Avenue Fort Worth, Texas 76111
Tel: (817) 870-1211
Fax: (817) 970-1225
Trial Counsel for Dr. Ahmad
TABLE OF CONTENTS
Identify of Parties and Counsel ________________________________________ ii
Table of Contents ___________________________________________________ iii Index of Authorities _________________________________________________ iv Statement of the Case _______________________________________________ vi Issues Presented ____________________________________________________ vii Statement of Facts __________________________________________________ 2 Summary of Argument ______________________________________________ 5 Argument _________________________________________________________ 6 Prayer for Relief ___________________________________________________ 15 Certificate of Service ________________________________________________ 16 Certificate of Compliance ____________________________________________ 16 Appendix Final Judgment ___________________________________________________ TAB A Findings of Fact and Conclusions of Law ______________________________ TAB B
INDEX OF AUTHORITIES
CASES
Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212 S.W.3d 665 (Tex. App.--Austin 2006, no pet.).
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997).
Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942).
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985). Garcia v. Gomez, 319 S.W.3d 638 (Tex. 2010). In re A.B.P., 291 S.W.3d 91, 99 (Tex.App.-Dallas 2009, no pet.). McGilliard v. Kuhlmann, 722 S.W.2d 694 (Tex.1986). Ragsdale v. Progressive Voters League, 801 S.W.2d 880 (Tex. 1990) (per curiam). Ridge Oil Co., Inc. v. Guinn Invs., Inc., 148 S.W.3d 143 (Tex. 2004). Sanders v. Harder, 227 S.W.2d 206 (Tex.1950).
Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 892–93 (Tex.App.-Austin 2010, pet. denied).
Schlager v. Clements, 939 S.W.2d 183, 191–93 (Tex. App.—Houston [14th Dist.] 1996, writ denied).
Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009). Stamper v. Knox, 254 S.W.3d 537 (Tex.App.-Houston [1st Dist.] 2008, no pet.). Stelly v. Papania, 927 S.W .2d 620 (Tex.1996) (per curiam).
Tex. Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d 515, 517–18 (Tex.1999) (per curiam).
Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005).
RULES Tex. R. Civ. P. 191.1.
Tex. R. Civ. P. 198.2(a).
Tex. R. Civ. P. 198.2(c).
Tex. R. Civ. P. 198.3.
STATEMENT OF THE CASE
This is a suit for attorney’s fees brought by John H. Carney against his former
client, Ishfaq Ahmad. (1 CR 20).
On or about May 1, 2012, Appellant filed a Petition in Intervention for Attorney’s Fees in cause no. 324-494783-11, styled In the Matter of the Marriage of Ishfaq Ahmad and Kalsoom Ahmad and In the Interest of F. A., A Child. (1 CR 20).
On or about June 25, 2013, the Court severed Appellant’s action from the underlying divorce suit into a separate action under cause no. 324-538990-13. (1 CR 17).
On or about May 22, 2014, a final trial was held in the 324th District Court of Tarrant County, Texas, the Honorable Judge Jerome Hennigan presiding. (1 RR 1:11-15). Dr. Ahmad proceeded to trial represented by his attorney of record, Donald Fulton. Mr. Carney proceeded to final trial pro se. (1 RR 2:2-12). At the conclusion of trial, the Court requested from Intervenor a response on one issue raised by Defendant’s counsel. (2 RR 49:6-9; 2 RR 50:7-22; 2 RR 51:11-20). Pending that response, the trial court recessed and took the decision under advisement. (2 RR 51:11-20). On or about June 13, 1014, a rendition letter was sent to the parties which denied Appellant’s Petition in Intervention. (1 CR 81). The Court’s take nothing Final Judgment was signed on March 11, 2015. (1 CR 87-88; Appendix –Tab A).
Appellant Mr. Carney filed a Notice of Appeal on June 8, 2015. (1 CR 136).
ISSUES PRESENTED
I. Whether the trial court’s denial of Mr. Carney’s request for attorney fees was an abuse of discretion when Mr. Carney failed to prove that the fees he sought were reasonable and necessary by providing details as to what was done on an hourly basis in his representation of his former client, Dr. Ahmad, to justify his fees.
II. Whether the trial court abused its discretion in sustaining Dr. Ahmad’s objection that the use of the admissions would have been unfair and prejudicial and withdrawing the deemed admissions of Dr. Ahmad when the evidence showed that the failure to answer was not intentional or the result of conscious indifference.
No. 07-15-00252-CV
IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS
**********
JOHN H. CARNEY & ASSOCIATES, Appellant
V.
ISHFAQ AHMAD,
Appellee.
**********
From the 324th District Court of Tarrant County, Texas The Honorable Judge Jerome Hennigan Presiding
APPELLEE’S ORIGINAL BRIEF
TO THE HONORABLE SEVENTH COURT OF APPEALS:
Appellee Ishfaq Ahmad (hereinafter referred to as "Dr. Ahmad") files this Appellee's Original Brief, and would respectfully request that this court affirm the trial court's judgment and deny all relief requested by Appellant John H. Carney (hereinafter referred to as "Mr. Carney").
STATEMENT OF FACTS
Appellant John H. Carney (“Mr. Carney”) and Appellee Dr. Ishfaq Ahmad (“Dr.
Ahmad”) began an attorney-client relationship on March 30, 2011 in Dallas County, Texas, at which time the parties signed a written contract for legal services. (3 RR Intervenor’s Exhibit 1). Mr. Carney represented Dr. Ahmad in Cause No. 324-494783-11, the underlying divorce action, from approximately March 30, 2011 until he withdrew and filed his Petition in Intervention for Attorney Fees, at which time Dr. Ahmad sought other representation. (2 RR 23:19-22; 3 RR Intervenor’s Exhibit 1).
Dr. Ahmad directly disputed some of the fees incurred and charged by Mr. Carney and requested explanation of these fees, but his requests were shrugged off and ignored by Mr. Carney. (1 RR 44:18-25).
On or about May 1, 2012, Mr. Carney filed an Original Petition in Intervention for Attorney Fees in the underlying divorce action, which was served on Mark Rosenfield, then counsel for Dr. Ahmad. (1 CR 20). Sometime between May and August of 2012, Dr. Ahmad sought the assistance of the fee dispute resolution committee, but Mr. Carney declined to participate in an arbitration or mediation of the dispute. (1 RR 44:4-17).
In December 2012, Mr. Carney filed a traditional and no evidence motion for summary judgment, which was denied in a memorandum of the Court on March 13, 2013. (2 CR 49; 2 CR 60). On February 8, 2013, Mr. Carney purportedly served on Dr. Ahmad, by and through his attorney John White (“Mr. White”), a Request for Admissions by facsimile and email. (2 RR 10:14-21; 3 RR Bill of Exception Exhibit 1). He also copied same to Sanjay Mathur, counsel for Dr. Ahmad’s estranged wife Kalsoom
Ahmad, and by certified mail to Kalsoom Ahmad herself. (3 RR Bill of Exception Exhibit 1). Mr. Carney did not copy the request for admissions by email, facsimile, certified or regular mail to Dr. Ahmad. (3 RR Bill of Exception Exhibit 1). Nor did Mr. Carney file with the court a Certificate of Written Discovery, such as to put the Court, the parties, and subsequent counsel in the case, on notice that discovery had been served in the case. (2 RR 10:12-13).
On March 6, 2013, Donald Fulton (“Mr. Fulton”) made his appearance in the case on behalf of Dr. Ahmad, and remained the attorney of record on the case through final trial on May 22, 2014. (2 RR 5:6-8; 2 RR 6:6-11; 2 RR 7:15-21).
On June 25, 2013, the Court signed an Order of Motion for Severance that severed Appellant’s claims from the underlying divorce action, assigning it a new cause number, 324-538990-13. (1 CR 17-18).
From June 25, 2013 until the day before trial nearly one year later, there was no filing of a certificate of written discovery, no filing of deemed admissions, and no transmission from Mr. Carney to Mr. Fulton of any discovery requests which were allegedly propounded on Dr. Ahmad in this severed action. (1 CR 65; 2 RR 10:12-13; 2 RR 5:15-25; 2 RR6:1-19; 2 RR 7:3-7, 24-25). At 4:42 p.m. on May 21, 2014, the day before the case was to proceed to final trial, Mr. Carney filed the deemed admissions with the Court and served them not on Mr. Fulton, who had been counsel for Dr. Ahmad for the last year, but on Mr. White. (1 CR 65; 2 RR 5:15-25).
At trial on this case, Mr. Carney sought to use the deemed admissions in securing his award of attorney fees. (2 RR 13:20-25; 2 RR 14:1-3). After hearing the argument of counsel as to who was served with the request and when they were served, the Court sustained Mr. Fulton’s objections to the use of the deemed admissions as unfair and prejudicial to Dr. Ahmad. (2 RR 14:4-13). At that point in the trial, Mr. Carney made a bill of exception, reading into the record each of the admissions requested, noting that no answer had been received. (2 RR 14:14-23; 2 RR 15:5-25; 2 RR 16:1-25; 2 RR 17:1-25; 2 RR 18:1-25; 2 RR 19:1-25; 2 RR 20:1-25; 2 RR 21:1-25; 2 RR 22:1-25; 2 RR 23:1-14).
Upon the conclusion of his bill, Mr. Carney proceeded with his case in chief, first calling himself as a witness. (2 RR 23:18). Mr. Carney testified that he and Dr. Ahmad entered into a written contract for services on or about March 30, 2011, and that contract was the basis of the filing of the original petition for divorce for Dr. Ahmad from his wife Kalsoom Ahmad. (2 RR 23:19-23; 2 RR 24:3-6). The contract was offered and admitted. Mr. Carney then testified as to a summary of his billing and the aggregate billing of $32,903.27 to Dr. Ahmad, of which only $11,051.48 remained unpaid. (2 RR 24:7-17). Offering and admitting two exhibits—a summary sheet (Exhibit 2) and the individual billing statements (Exhibit 3)—Mr. Carney testified that “attached to the billing summary provided to Dr. Ahmad each month was a line-item of each of the individual services performed, who it was performed by, and the amount charged for those particular services.” (2 RR 24:18-25). However, none of these itemized bills, redacted or otherwise, were offered or admitted into evidence. (3 RR Exhibits 2, 3, and 4)
Claiming “privilege” in not producing the actual billing statements, Mr. Carney testified that “Dr. Ahmad’s divorce case was complicated in several respects[,]” that “Dr. Ahmad was a high maintenance client and required a lot of hand-holding through the process[,]” and “Dr. Ahmad was chauvinistic and he did not want his wife to have much of anything.” (2 RR 25:1-3; 2 RR 25:10-11; 2 RR 28:13-14).
Mr. Carney also called his office manager, Dolph Haas, as a witness to testify about the firm’s billing practices, including the services provided, the time billed for those services, and the preparation of billing statements. (2 RR 36:4-17; 2 RR 39:9-21). However, like Mr. Carney’s testimony, Mr. Haas’ testimony did not aid the court in understanding whether the services performed by Mr. Carney and his legal staff were reasonable and necessary.
In conclusion, the Court found that Mr. Carney’s billing statements failed to include details as to the services performed so as to allow the Court to determine the reasonableness and necessity of his services. (1 CR 121-22; Findings of Fact and Conclusions of Law, Appendix – Tab B). Mr. Carney could not explain to the court with any reasonable specificity the nature of the work provided on each date that he billed Dr. Ahmad, and whether those services were reasonable and necessary. (1 CR 121-22; Findings of Fact and Conclusions of Law, Appendix – Tab B).
On March 11, 2015, the Court signed a take nothing judgment. (1 CR 87-88; Final Judgment, Appendix – Tab A). Having been denied an award for attorney fees, Mr. Carney then filed this appeal. (1 CR 136).
SUMMARY OF ARGUMENT
Mr. Carney raises two issues on appeal.
First, Mr. Carney raises the issue of whether the trial court abused its discretion in failing to grant his attorney fees where the Court found that he failed to give details and provide testimony as to the work that was done on an hourly basis in his representation of Dr. Ahmad was reasonable and necessary.
Second, Mr. Carney raises the issue of whether the Court abused its discretion in withdrawing the deemed admissions of Dr. Ahmad It is Dr. Ahmad’s contention that the Court did not err in denying the relief sought because Mr. Carney failed to meet his burden of proof as to the reasonableness and necessity of the fees he charged Dr. Ahmad.
ARGUMENT AND AUTHORITIES
I. Standard of Review A trial court's decision to either grant or deny attorney's fees is reviewed under an abuse-of-discretion standard. See Ridge Oil Co., Inc. v. Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex. 2004); Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212 S.W.3d 665, 671 (Tex. App.--Austin 2006, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Under the abuse-of-discretion standard, legal and factual sufficiency of the evidence are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion. Stamper v. Knox, 254 S.W.3d 537, 542 (Tex.App.-Houston [1st Dist.] 2008, no pet.). A trial court does not abuse its discretion when there is some evidence of a substantive and probative character to support the trial court's judgment. Id.
II. The trial court did not abuse its discretion in denying Mr. Carney’s request for attorney fees because Mr. Carney failed to prove that the fees he sought were reasonable and necessary by providing details as to what was done on an hourly basis in his representation of Dr. Ahmad to justify his fees.
In the present case, Mr. Carney claims that there was “clear, direct, and uncontroverted expert opinion as well as documents that were sufficient to prove the reasonableness and necessity of the attorneys fees charged to Appellee.” (Appellant’s Brief, p. 8).
Mr. Carney’s claim is inaccurate and unsupported by the record. The very thing missing, as identified in the Court’s findings of fact and conclusions of law, are the documents Mr. Carney claims are sufficient to prove the reasonableness and necessity of the attorneys fees charged to Appellee and warrant the relief he is seeking. Merely producing summaries of hours expended and amounts owed, coupled with a lack of testimony as to the specific tasks performed to justify the reasonableness of such tasks is insufficient.
The reasonableness of attorney’s fees is ordinarily left to the trier of fact, and a reviewing court may not substitute its judgment for the jury’s. Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009); Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990) (per curiam). Ordinarily, the allowance of attorney's fees rests with the sound discretion of the trial court and will not be reversed without a showing of abuse of that discretion. Ragsdale, 801 S.W.2d at 880. Factors to be considered in determining the amount of attorney’s fees to be awarded include the following: (1) the time and labor required, novelty and difficulty of the questions presented, and the skill required; (2) the likelihood that acceptance of employment precluded other employment; (3) the fee customarily charged for similar services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or the circumstances; (6) the nature and length of the professional relationship with the client; (7) the expertise, reputation, and ability of the lawyer performing the services; and (8) whether the fee is fixed or contingent. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). “A reasonable fee is one that is not excessive or extreme, but rather moderate or fair.” Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010).
It is the general rule that the testimony of an interested witness, such as a party to the suit, though not contradicted, does no more than raise a fact issue to be determined by the jury. Ragsdale, 801 S.W.2d at 880. But there is an exception to this rule, which is that where the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon, it is taken as true, as a matter of law. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942). Accord, McGilliard v. Kuhlmann, 722 S.W.2d 694 (Tex.1986). However, Ragsdale was keen to distinguish itself from other cases, explaining that while that case fit the exception to the general rule, it was not implying that in every case where there is uncontradicted testimony offered it mandates an award of the amount claimed. Ragsdale, 801 S.W.2d at 880. The Court further stated that “even though the evidence might be uncontradicted, if it is unreasonable, incredible, or its belief is questionable, then such evidence would only raise a fact issue to be determined by the trier of fact. In order for the court to award an amount of attorneys' fees as a matter of law, the evidence from an interested witness must not be contradicted by any other witness or attendant circumstances and the same must be clear, direct and positive, and free from contradiction, inaccuracies and circumstances tending to case suspicion thereon.” Ragsdale, 801 S.W.2d at 881.
Mr. Carney relies on the exception in Ragsdale as his basis for the court’s alleged abuse of discretion in denying relief. (Appellant’s Brief, pg. 12). It is however, in the present case, that we see exactly what the Ragsdale court warned would not be subject to the exception. Mr. Carney provided testimony and evidence of the contractual agreement he had with Dr. Ahmad, his hourly rate and it’s customary acceptance in the county, as well as the nature of the services he provided, but he wholly failed to offer evidence or testimony by which the Court could ascertain whether the $11,051.48 he sought to have awarded was incurred through reasonable and necessary services on the case.
The Court, as a trier of fact, in this case was within full discretion to award or not award attorneys' fees as a matter of law when it found that Mr. Carney’s billing statements failed to include details as to the services performed so as to allow the Court to determine the reasonableness and necessity of his services. (1 CR 121-22; Findings of Fact and Conclusions of Law, Appendix – Tab B). Mr. Carney could not explain to the court with any reasonable specificity the nature of the work provided on each date that he billed Dr. Ahmad, and whether those services were reasonable and necessary. (1 CR 121- 22; Findings of Fact and Conclusions of Law, Appendix – Tab B). In this situation the evidence may be uncontradicted by an expert, but the trial judge could and did find that Mr. Carney did not produce sufficient evidence that the claimed fees were reasonable and necessary. Unlike in Ragsdale, where the attorneys testified as to the time involved, the nature of the services that were rendered to justify the time involved, and the reasonableness of the fees charged, Mr. Carney failed to satisfy these elements with any specificity.
Mr. Carney additionally argues that Texas does not require detailed billing records, which the undersigned counsel would agree is true. Texas law has not required detailed billing records or other documentation as a predicate to an attorney's fees award. See, e.g., Tex. Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d 515, 517–18 (Tex.1999) (per curiam) (recognizing attorney's affidavit to be sufficient support for award of fees in default judgment); Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 892–93 (Tex.App.-Austin 2010, pet. denied) (accepting affidavit testimony detailing legal work and rates); In re A.B.P., 291 S.W.3d 91, 99 (Tex.App.-Dallas 2009, no pet.) (noting that documentary evidence is not a prerequisite to an award of attorney's fees); Schlager v. Clements, 939 S.W.2d 183, 191–93 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (holding that the failure to produce documentary evidence would affect the weight of an attorney's testimony regarding fees rather than its admissibility).
However, that does not relieve Mr. Carney of the burden of proving his case and assisting the Court in finding the reasonableness and necessity of his purported fees. To avoid this consequence, Mr. Carney should have provided sufficient information, be it itemized statements or detailed testimony, to the Court by which it could have made a meaningful evaluation of his intervention for attorney's fees. Without more than mere summary sheets, it was impossible for the Court to know how the hours were spent, whether the charges were reasonable or excessive, or whether there was any inadequately documented work that should have been excluded particularly in light of Dr. Ahmad’s testimony that he had attempted to dispute the charges with Mr. Carney at the time he received his invoice and was not afforded the opportunity.
III. The trial court did not abuse its discretion in sustaining Dr. Ahmad’s objection that the use of the admissions would have been unfair and prejudicial and withdrawing the deemed admissions of Dr. Ahmad when the evidence showed that the failure to answer was not intentional or the result of conscious indifference.
Good cause exists to withdraw admissions if the failure to respond to a request for admissions is an accident or mistake, rather than intentional or the result of conscious indifference. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005).
In his second point on appeal, Mr. Carney argues that the court abused its discretion in withdrawing the deemed admissions of Dr. Ahmad, as there was not good cause to do so. (Appellant’s Brief, p. 16). The undersigned counsel would contend that good cause did exist to withdraw the deemed admissions in that there was no evidence to suggest that the failure of counsel to response to the request for admissions was intentional or the result of conscious indifference. Moreover, the withdraw of the admissions did not hamper Mr. Carney’s ability to proceed to trial or put forth his case in chief on the merits of his request for attorney’s fees.
By rule, a request for admission is considered admitted if a response is not timely served. Tex. R. Civ. P. 198.3. The response in this case was never served because neither Dr. Ahmad himself, nor Mr. Fulton, his trial counsel, was ever aware that such Request for Admissions had been propounded, and the requested admissions were deemed admitted under the rule.
At the start of trial, the Court took up the preliminary matter of the deemed admissions upon the oral motion of Mr. Fulton, Dr. Ahmad’s counsel, asking for them to be withdrawn as he had just become aware of them and the use of deemed admissions would be unfair and prejudicial. (2 RR 5:15-25). The court allowed the parties to argue the issue before ultimately sustaining Appellee’s objection and withdrawing the deemed admissions and instructing Mr. Carney to proceed with his case-in-chief. (2 RR 5-14)
Requests for admission are a tool intended to simplify trials. They may be used to elicit “statements of opinion or of fact or of the application of law to fact.” Tex.R. Civ. P. 198.1. Requests for admission are useful in “addressing uncontroverted matters or evidentiary ones like the authenticity or admissibility of documents.” Wheeler, 157 S.W.3d at 443. Mr. Carney’s requests here, however, asked essentially that Dr. Ahmad admit to the validity of his claims and concede any defenses he may have asserted— matters Mr. Carney knew to be in dispute, having had his motion for summery judgment denied. Requests for admission were never intended for this purpose. Stelly v. Papania, 927 S.W .2d 620, 622 (Tex.1996) (per curiam) (quoting Sanders v. Harder, 227 S.W.2d 206, 208 (Tex.1950) (stating that requests for admission were “never intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense”)).
Generally, a party responding to requests for admissions must serve a written response on the requesting party within 30 days after service. Tex. R. Civ. P. 198.2(a). The response time may be modified by agreement or by the court for good cause. Id. 191.1. If the response is not served timely, however, the request is deemed admitted without the necessity of a court order. Id. 198.2(c). But a trial court may allow the withdrawal of a deemed admission upon a showing of (1) good cause and (2) no undue prejudice. Id. 198.3. Good cause is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference. Wheeler, 157 S.W.3d at 442. Undue prejudice depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party's ability to prepare for it. Id. at 443.
In the present case, Mr. Carney purported that he served Mr. White, Dr. Ahmad’s prior counsel, with a Request for Admissions by facsimile and email on or about February 8, 2013, to which Ms. Fulton never responded. (2 RR 10:14-21). However, the record shows that Mr. Carney never filed with the court a Certificate of Written Discovery or anything that would put subsequent attorneys on notice that discovery had been promulgated in this case, and when Mr. Fulton appeared in the case March 6, 2013, nothing was served on him. Mr. Fulton’s representation of Dr. Ahmad continued for the next 15 months, through final trial, and Mr. Carney never communicated to Mr. Fulton that discovery had been served or that he intended to rely on any deemed admissions until filing with the court on the eve of trial correspondence that he intended to do so. (2 RR10:12-13; 2 RR 5:15-25).
The Court afforded Mr. Carney the opportunity to make a Bill, which he did. In that Bill, Mr. Carney read through each request for admission. (2 RR 14:14-23; 2 RR 15:5-25; 2 RR 16:1-25; 2 RR 17:1-25; 2 RR 18:1-25; 2 RR 19:1-25; 2 RR 20:1-25; 2 RR 21:1-25; 2 RR 22:1-25; 2 RR 23:1-14). It is Appellee’s contention that had they been deemed, it would have been unfair and prejudicial to the client. Despite the fact that the requests were never served upon Mr. Fulton, or Dr. Ahmad himself, it appears from the record that the admissions in this case were intended to have Dr. Ahmad admit to the validity of Mr. Carney’s claims and concede any defenses he may have asserted. Mr. Carney cannot simply eliminate a contest as to whether the fees were reasonably incurred by soliciting an admission by defendant that would waive any defense and force him to stipulate that because he merely because he contracted with Mr. Carney to provide services that all services provided by Mr. Carney were reasonable. That is ludicrous.
As to the claim by Mr. Carney that the Court did not have good cause to withdraw the deemed admissions, I believe the foregoing argument which shows that Mr. Fulton and Dr. Ahmad were not on notice of the propounded requests until the day of trial, evidences that the failure to answer was not intentional or the result of conscious indifference. Moreover, Mr. Carney was not hampered or in any way prejudiced in having to proceed to trial on the merits of his claim for attorney’s fees. Regardless of the content of the deemed or withdrawn admissions, the dispositive issue for the Court was not whether there existed a contract between Mr. Carney and Dr. Ahmad, or whether the hourly rate charged by Mr. Carney was reasonable, the crux of the case came down to whether Mr. Carney could show that the excess of fees he sought were reasonably and necessarily incurred.
In sum, the court did not abuse its discretion in withdrawing the deemed admissions because the court had good cause for doing so.
PRAYER FOR RELIEF
Appellee, Dr. Ahmad, would respectfully request for the reasons herein, this court
AFFIRM the trial court's judgment and deny all relief requested by Appellant, John H. Carney.
Respectfully Submitted,
\s\ Melissa K. Swan
P. Micheal Schneider
State Bar No. 24042911
Melissa K. Swan
State Bar No. 24049979
Schneider Law Firm, P.C.
400 E. Weatherford St., Ste. 106 Fort Worth, TX 76102
Voice (817) 850-9955
Fax (817) 769-3797
melissa@clientdrivenlaw.com Attorneys for Appellee Ishfaq Ahmad
Certificate of Service
I hereby certify that the foregoing has been served on the person(s) named below by transmitting a true copy of same to such person(s) pursuant to the TEXAS RULES OF APPELLATE PROCEDURE on this date, December 11, 2015:
John H. Carney, Pro Se John H. Carney & Associates 5005 Greenville Ave., Suite 200 Dallas, Texas 75206 Tel: (214) 368-8300 Fax: (214) 363-9979 johnhatchettcarney@gmail.com
_/s/Melissa K. Swan_____________________ P. Micheal Schneider
State Bar No. 24042911
Melissa K. Swan
State Bar No. 24049979
Certificate of Compliance
I hereby certify that the foregoing document contains 3,879 words and complies with TEXAS RULE OF APPELLATE PROCEDURE 9.4(i)(2)(B).
_/s/Melissa K. Swan
P. Micheal Schneider
State Bar No. 24042911
Melissa K. Swan
State Bar No. 24049979
No. 07-15-00252-CV
IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS
**********
JOHN H. CARNEY & ASSOCIATES,
Appellant
v.
ISHFAQ AHMAD,
Appellee.
**********
From the 324th District Court of Tarrant County, Texas The Honorable Judge Jerome Hennigan Presiding
APPENDIX TO APPELLEE'S ORIGINAL BRIEF
Respectfully submitted,
P. Micheal Schneider
State Bar No. 24042911
Melissa K. Swan
State Bar No. 24049979
Schneider Law Firm, P.C.
400 E. Weatherford St., Ste. 106 Fort Worth, TX 76102
Voice (817) 850-9955
Fax (817) 769-3797
Attorneys for Appellee Ishfaq Ahmad
Appendix-
Tab A 324-538990-13 FILED TARRANT COUNTY
21261201510:09:38 AM
THOMAS A. WILDER
~O •.'24-:H8990· I 3 DISTRICT CLERK
JOH~ II. CARNEY & ASSOCIATES IN THE I>ISTRICT COURT
*
V.
*
* 324Tll JUDICIAL DISTRICT
*
ISHFAQ All~IAD TARRANT COUNTY. TEXAS
*
Fl~AL.HJl>GMENT
The ahovc stykd and numherl'd cause: was called for trial on ~lay 22, 2014.
Plaintiff. John II. Carney and Associates, appeared in person and by uuomcy of record and announced ready for trial. Ddt:mlant. lshfaq Ahmad, appeared in person and by anornl'y nf renmJ and announcc<l ready for trial.
No jury having hecn dcnrnndcd hy any party, <.111 mailers of fact and things in controversy wcr~ submilled to 1he Court. The Court, after listening to the evidence and arguments of counsel. is of the opinion that Plairniff, John U. C;irncy and Associates, is not cntitlf:'d to recover o( Defondanl, lshfaq Ahmad, on any of Plaintiff's causes of action.
IT IS Tl IEirnFORE ORDERED. ADJUDGED. AND DECREED by th\! Court that Plaimirf. John I I. Carn.::y and Associarcs. tah' nothing of Defendant. lshfaq Ahmad.
Costs of c.:ourt c.xpcndt'd or incum:d in this cause are taxed against Plaintiff.
All oth~r relief no1 sp\!cifically granlt>d h~rcin is h~reby denied.
SIGNEDrhi<;_lldayof ~
f'ISAl.J\:01i,IE!\T l'Al)f: I
COUR'flS MINUTES
~~~~~~~-~~-JR_A_N_sA_c~~N#~
·'
324-538990-13
APPRQlk: '_]:i Donald'!'. Fulton 227 North Sylvania Avclllll.'
Fort Worth, TX 76111
l
SB # 075.19400 Phont.? 817-870-1211 Fax 817-870-1225 A11orncy for 1Jdc11da111
John 11. Carncv 'SQOS Gret'nvilie Ave, Suire 200 Dal as, Texas 75206 SB# 0.1832200 Phone 214-.168-8300 Fax 214-363-9979 jcamey@johnhcarney.nun Attorney for Plainiiff
f"l:\'Al .ll'llC:\11'.!l<T l'l\Gt: l
Appendix-
Tab B
CAUSE NO. 324-538990-13
JOHN H. CARNEY § IN THE DISTRICT COURT §
vs § 324rn JUDICIAL DISTRICT §
ISHFAQ AHMAD § TARRANT COUNTY, TEXAS
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court makes the following findings of fact and conclusions of law. -i :x: t:?
o9 Vi Si!
FINDINGS OF FACT - ...:i.. :I: ::0 ~ ):> :S-0 ;:Q
~ (f) ~ >"T!
1. The plaintiff, John H. Camey ("Camey"), is licensed to practice law ~!8e Stm of~P Texas. µ · °"" nf'TI 2. Camey provided legal services to the defendant, Ishfaq Ahmad ("Ahmagr'E§ .. :x go · 3. Camey and Ahmad entered into an "Attorney-Client Agreement" authati§g ~e~ to render those services. rri · ~ -< 4. Those legal services were rendered in Cause No. 324-494783-11 styled It?ihe Matter of the Marriage of Ishfaq Ahmad and Kalsoom Ahmad and in the Interest of I - . .
A...,, A Child.
5. Camey's billing statements failed to include details as to the services he performed so as to allow the Court to determine the reasonableness and the necessity of his services.
6. Camey and his office manager, Dolph Haas, presented testimony as the services provided and the time billed for those services.
7. Camey presented exhibits in trial that were admitted as to those services rendered.
8. Camey's billing statements and the testimony of the witnesses were of so little detail as to be impossible for the Court to to determine the mature of the work provided for which he was billing Ahmad.
9. Carney's billing statements as well as the testimony of the witnesses were insufficient to determine whether those services were reasonable and necessary.
10. Carney was unable to explain to the court either in his direct testimony or under cross examination the nature of the work provided on each date that he billed Ahmad.
11. Camey was unable to adequately explain whether those services were reasonable and necessary.
12. Carney filed requests for admissions.
13. Alunad did not respond to those requests.
14. The Court denied Camey's motion to deem those admissions.
CONCLUSIONS OF LAW
1. The testimony presented by Camey and his office manager was insufficient for the court to determine the work performed to justify the fees he was requesting at trial.
1 COURT1S MINUTES TRANSACTlf~ f 65 ~
122
2. The evidence presented by Carney was insufficient for the Court to determine the services he performed on behalf of Ahmad to justify the fees he was requesting. 3. The testimony and evidence presented by Carney was insufficient for the Court to determine the reasonableness of his services. 4. The testimony and evidence presented by Carney was insufficient for the Court to determine the necessity of his services 5. Good cause existed for not deeming Carneys' requests for admissions.
Signed this 18th day of May, 2015