Matthiessen v. Schaefer

897 S.W.2d 825, 1994 WL 722129, 1994 Tex. App. LEXIS 3293

• Court: Court of Appeals of Texas
• Decided: December 28, 1994
• Docket: 04-93-00750-CV
• Status: Published

Opinions

OPINION

HARDBERGER, Justice.

This is an appeal of attorney’s fees granted by the trial court in a turnover order.

A turnover order is a final, appealable “judgment.” Schultz v. Fifth Judicial Dist. Ct. of Appeals, 810 S.W.2d 738, 740 (Tex.1991). In a prior proceeding, the trial court rendered judgment that John M. Schaefer recover $127,853.75 plus attorneys fees against Paul G. Silber, Jr., William J. Matth-iessen and others. We have affirmed that judgment as modified in cause number 04-93-00602-CV.

After that appeal was perfected, Schaefer sought the turnover order which is the subject of this appeal. On Schaefer’s motion, the trial court ordered Silber and Matthies-sen to turn over to the Bexar County Sheriff certain property. The order also awarded $5,000 to Schaefer as attorney’s fees. Silber and Matthiessen appealed the order alleging four points of error.

Subsequent to entry of the turnover order the parties reached an agreement that appellants would secure the judgment by a letter of credit in exchange for Schaefer’s agreement not to enforce the turnover order. The parties now agree' that the letter of credit and counsel’s agreement renders the appeal moot except as to the $5,000 in attorney’s fees awarded to Schaefer. Since appellant has now agreed that its points of error one, two and four are moot, we will proceed to consider point of error three concerning the award of attorney’s fees pursuant to the turnover order.

Appellants allege that the trial court abused its discretion in awarding Schaefer $5,000 as attorney fees, because (a) Schaefer pleaded only for attorney fees in the amount of $1,500 and (b) the evidence is legally or factually insufficient to support an award of $5,000.

The turnover statute provides that a “judgment creditor is entitled to recover reasonable costs, including attorney’s fees.” Tex.Civ.PRAC. & Rem.Code Ann. § 31.002(e) (Vernon 1986). In his motion for turnover relief, Schaefer pleaded for reasonable attorneys’ fees of “at least One Thousand Five Hundred and No/100 Dollars ($1,500).” Appellants argue that Schaefer is limited by his pleadings to the $1,500 amount stated in his motion. According to appellants, the award of $5,000 does not conform to the pleadings and thus is in violation of Tex.R.Civ.P. 301. We are not persuaded by this argument. Schaefer’s pleading presents a minimum amount he was asking for and not a maximum. Appellants failed to specially except to these pleadings. Absent a special exception, pleadings are to be liberally construed in favor of the pleading party. Owens v. Litton, 822 S.W.2d 794, 797 (Tex.App.-Houston [14th Dist.] 1992, writ denied).

The words “at least” mean “at a minimum.” While the language is objectionable because of non-specificity, it was not objected to. Therefore, all the pleadings say is that Schaefer wants $1,500, or more, for his attorney fees. He got more. We construe Schae-fer’s pleadings as presenting a demand for a minimum of $1,500 with no limit on the maximum amount that the court could award.

Appellants’ second argument is that the evidence is insufficient to support the award of $5,000. Schaefer’s attorney, Robert Loree, testified at the hearing on the turnover order that his reasonable attorney’s fees were $1,500. However, the trial court awarded Schaefer $5,000 in attorney’s fees.

The trial court’s decision to award attorney’s fees is reviewed for an abuse of discretion. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.1985); Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 936 (TexApp.-Austin 1987, no writ). An award of reasonable attorney’s fees must be supported by some evidence. See Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.1991). The amount and reasonableness of attorney’s fees is a question of fact involving several intangible factors. First Federal Savings & Loan Assoc, v. Ritenour, 704 S.W.2d 895, 902 (Tex.App.-Corpus Christi 1986, writ refd n.r.e.); Mack v. Moore, 669 S.W.2d 415, 419-20 (TexApp.-Houston [1st Dist.] 1984, no writ). The trial court in this case was the trier of fact with regard to the reasonableness and amount of the attorney’s fees. Expert testimony concerning the reasonableness of attorney’s fees is not conclusive and the trial court is not bound by such testimony. Smith v. Smith, 757 S.W.2d 422, 427 (Tex.App.-Dallas 1988, writ denied); Ri-tenour, 704 S.W.2d at 902. The trier of fact can consider the nature and complexity of the case, the amount in controversy, the amount of time and effort required and the expertise of counsel in arriving at a reasonable amount as attorney’s fees. Id. Furthermore, the judge could have drawn on his own expertise in his decision making. Mack v. Moore, 669 S.W.2d at 420. The record reveals no abuse of discretion. The trial court’s award of attorney’s fees was reasonable. Appellant’s third point of error is overruled.

The judgment is affirmed.