Michael A. Smith v. Cindy Pena

• Court: Court of Appeals of Texas
• Decided: June 29, 2015
• Docket: 02-14-00142-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00142-CV

MICHAEL A. SMITH APPELLANT

V.

CINDY PENA APPELLEE

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FROM THE 271ST DISTRICT COURT OF WISE COUNTY TRIAL COURT NO. CV08-09-684

MEMORANDUM OPINION 1

Appellant Michael A. Smith, an attorney, sued Appellee Cindy Pena for

breach of a mediated settlement agreement. 2 Smith sought to compel Pena to

convey to him three acres of land in Wise County for $9,000 in accordance with

1 See Tex. R. App. P. 47.4. 2 See Pena v. Smith, 321 S.W.3d 755 (Tex. App.—Fort Worth 2010, no pet.) (reviewing earlier proceedings related to the settlement agreement). the agreement. At the time of the bench trial from which Smith appeals, Pena’s

daughter had become the court-appointed legal guardian of Pena’s person and

estate.

The trial court signed a judgment finding that Pena had breached the

settlement agreement and that Smith had sued her for specific performance,

divesting Pena and her guardian of ownership of the property, conveying the

property to Smith, and denying Smith any attorney’s fees. Smith appeals from

the denial of attorney’s fees.

In Pena’s appellee’s brief, she argues that Smith’s notice of appeal was

not timely. We address this argument first because it challenges this court’s

jurisdiction. 3 Although the trial was held on June 25, 2013, the judgment was not

signed until April 4, 2014. Smith’s notice of appeal was filed on April 30, 2014.

As such, his notice of appeal was timely filed. 4

Pena also raises issues in her appellee’s brief challenging the trial court’s

judgment granting specific performance to Smith and complaining of, among

other things, Smith’s failure to pay for the land as ordered by the trial court. She

3 See Tex. R. App. P. 25.1(b) (“The filing of a notice of appeal by any party invokes the appellate court’s jurisdiction over all parties to the trial court’s judgment or order appealed from.”). 4 See Tex. R. App. P. 26.1 (requiring a notice of appeal to be filed within thirty days after the judgment is signed).

2 did not, however, file a notice of appeal. For that reason, we may not consider

her issues. 5

We now turn to Smith’s appeal. Smith’s brief does not contain a statement

of the issue or point on appeal. 6 His argument, however, makes clear that his

point is that the trial court abused its discretion by not awarding him attorney’s

fees.

Smith argues that an award of attorney’s fees was mandatory under civil

practice and remedies code section 38.001 7 and that Pena did not produce

evidence establishing that his requested fees were not reasonable. Smith does

not explain, however, how he met his burden of showing that the fees he

requested were reasonable. 8 He cites to no case law or statute explaining what

kind of evidence shows that fees are reasonable and necessary under section

38.001. The only authorities to which he cites are a case setting out the abuse of

5 See Tex. R. App. P. 25.1(c) (stating that “[a] party who seeks to alter the trial court’s judgment or other appealable order must file a notice of appeal” and that “[t]he appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause” (emphasis added)). 6 See Tex. R. App. P. 38.1(f) (“The brief must state concisely all issues or points presented for review.”). 7 See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 2015) (stating that in a breach of contract case, “[a] person may recover reasonable attorney’s fees”). 8 See id.

3 discretion standard, 9 section 38.001, and a case holding that an award of

attorney’s fees under a statute stating that a party “may recover” attorney’s fees

is not discretionary and then discussing the standards for an award of attorney’s

fees under the declaratory judgments act. 10 Even applying the standards for

proving a reasonable fee under the declaratory judgments act, 11 Smith does not

explain how the evidence at trial established the requested fees were reasonable

under the law. 12 And even if he had done so, Smith does not explain how he has

met the requirements for recovering attorney’s fees in breach of contract cases. 13

Accordingly, we cannot say that the trial court abused its discretion by denying

him attorney’s fees. 14 We overrule his sole issue.

9 Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). 10 Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). 11 See id. (referencing the Arthur Anderson factors that guide the determination of the reasonableness of a fee). Cf. Tex. Civ. Prac. & Rem. Code Ann. § 38.003 (West 2015) (providing a standard for determining a reasonable fee in a breach of contract case). 12 See Tex. R. App. P. 38.1(i). 13 See MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 666 (Tex. 2009) (“To recover fees under this statute, a litigant must do two things: (1) prevail on a breach of contract claim, and (2) recover damages.” (emphasis added)). 14 See id.; see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (stating that an appellate court has discretion to waive point of error due to inadequate briefing).

4 Having overruled Smith’s sole issue on appeal, we affirm the trial court’s

judgment.

/s/ Lee Ann Dauphinot LEE ANN DAUPHINOT JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DELIVERED: June 25, 2015