Sundance Minerals, L.P. v. Wanda Jo Moore, Individually and as Trustee of the Ruth Holder Testamentary Trust Maxine Holder, Individually and as Trustee of the Herbert Holder and Maxine Holder Trust Robert E. Holder Ricky Joe Holder Terry S. Holder Philip B. Holder

• Court: Court of Appeals of Texas
• Decided: October 20, 2011
• Docket: 02-10-00403-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00403-CV

SUNDANCE MINERALS, L.P. APPELLANT

V.

WANDA JO MOORE, APPELLEES INDIVIDUALLY AND AS TRUSTEE OF THE RUTH HOLDER TESTAMENTARY TRUST; MAXINE HOLDER, INDIVIDUALLY AND AS TRUSTEE OF THE HERBERT HOLDER AND MAXINE HOLDER TRUST; ROBERT E. HOLDER; RICKY JOE HOLDER; TERRY S. HOLDER; PHILIP B. HOLDER; JANILEE HOLDER WISDOM; SCOTTY D. PLASTER; REX. L. PLASTER; AND LARRY F. PLASTER

----------

FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

OPINION ---------- This is an appeal from a summary judgment in favor of appellees Wanda

Jo Moore and Maxine Holder, in their individual and other capacities, and Robert

E. Holder, Ricky Joe Holder, Terry S. Holder, Philip B. Holder, Janilee Holder

Wisdom, Scotty D. Plaster, Rex. L. Plaster, and Larry F. Plaster on their

counterclaim in this suit to determine the type of royalty reserved in a deed.

Appellant Sundance Minerals, L.P. contends in two issues that (1) the trial court

erred by granting appellees‘ motion for summary judgment contending that the

deed reserved a fraction of a royalty and denying its motion that the deed instead

reserved a fixed, fractional, nonparticipating royalty and (2) the trial court erred in

awarding attorney‘s fees to appellees. We modify the trial court‘s judgment and

affirm it as modified.

Background

In 1958, J.B. Holder and Ruth Holder conveyed 515 acres of real property

to J.D. Armstrong and Ophelia Armstrong. The Holders, however, reserved in

the deed ―an undivided and non-participating one-half interest in the oil, gas, and

other mineral rights.‖ The deed further stated that the Holders ―shall be entitled

to one half of the usual one eighth royalty received forsuch [sic] oil, gas and other

minerals produced from said land.‖

Sundance is the successor-in-interest to the Armstrongs; appellees are the

successors to the Holders. In 2003, Sundance leased the land to Quicksilver

Resources for a one-fifth royalty. Appellees contend that the 1958 reservation

entitles them to one-half of whatever royalty is payable at any given time under a

2 lease on the property; in this case, one-half of the one-fifth royalty payable under

Sundance‘s lease with Quicksilver (a one-tenth overall royalty). Sundance

asserts that appellees are entitled to only half of a normal one-eighth royalty

(one-sixteenth overall).

Sundance sued appellees seeking a declaratory judgment that the 1958

deed reserved only a fixed, nonparticipating one-sixteenth royalty. Sundance

also sought attorney‘s fees. Appellees counterclaimed based on their

interpretation that they own one-half of the actual royalty collected by Sundance;

they also asked for attorney‘s fees. Both parties moved for summary judgment.

The trial court granted appellees‘ motion and awarded attorney‘s fees to

appellees.

Summary Judgment Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant‘s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

3 494, 508 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P.

166a(b), (c).

When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both parties‘

summary judgment evidence and determine all questions presented. Mann

Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n,

300 S.W.3d 746, 753 (Tex. 2009). The reviewing court should render the

judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d

at 848.

Proper Construction of Deed Reservation

In its first issue, Sundance contends that the trial court should have

granted its summary judgment and denied appellees‘ because the royalty

reservation in the deed should be construed to reserve to appellees only a fixed,

fractional nonparticipating royalty interest or 1/16th of any royalty.

When interpreting a deed just as in interpreting a contract, the intent of the

parties is to be determined from the express language found within the four

corners of the document. Luckel v. White, 819 S.W.2d 459, 461–63 (Tex. 1991).

Construction of an unambiguous deed is a question of law to be resolved by the

court. Id. All parts of the deed are to be harmonized, construing the instrument

to give effect to all of its provisions. Id. Here, both parties agree that the deed‘s

reservation language is unambiguous.

4 It is well-settled that a mineral estate is comprised of five separate and

distinct interests: 1) the right to develop, 2) the right to lease, 3) the right to

receive bonus payments, 4) the right to receive delay rentals, and 5) the right to

receive royalty payments. French v. Chevron U.S.A., 896 S.W.2d 795, 797 (Tex.

1995); In re Estate of Slaughter, 305 S.W.3d 804, 808 (Tex. App.––Texarkana

2010, no pet.). When a mineral estate is conveyed, all interests are transferred

unless they are specifically reserved to the grantor. Slaughter, 305 S.W.3d at

808. As the Texas supreme court has recognized,

The words ―royalty,‖ ―bonus,‖ and ―rentals‖ have a well- understood meaning in the oil and gas business. Likewise, ―minerals‖ and ―mineral rights‖ have a well-recognized meaning. Broadly speaking, a reservation of minerals or mineral rights without limitation would include royalties, bonuses, and rentals. A conveyance of land without reservations would include all minerals and mineral rights. However, it is well settled that a grantor may reserve minerals or mineral rights and he may also reserve royalties, bonuses, and rentals, either one, more or all. Here we have a reservation of only ―royalty rights.‖ It is obvious, it seems to us, that this does not include a reservation of bonuses or rentals, but only of an interest in oil, gas, or minerals paid, received, or realized as ―royalty‖ under any lease existing on the land at the time of the reservation, or thereafter executed by the grantee, his heirs or assigns.

Schlittler v. Smith, 101 S.W.2d 543, 544 (Tex. 1937). Further, a royalty interest

is nonparticipating in nature and does not entitle the owner to any share of

ordinary cash or other bonuses, or of delay rentals. Slaughter, 305 S.W.3d at

809.

A ―fractional royalty‖ interest entitles the owner to the specified fractional

amount stated in the deed of oil, gas, or other minerals produced from the land

5 and remains constant regardless of the amount of royalty contained in a

subsequently-negotiated oil and gas lease. Range Res. Corp. v. Bradshaw, 266

S.W.3d 490, 493 (Tex. App.––Fort Worth 2008, pets. denied) (op. on reh‘g). A

―fraction of royalty‖ conveys a fractional share of the royalty that is contained in

an oil and gas lease––it is not fixed, but rather ―floats‖ in accordance with the

size of the landowner‘s royalty contained in the lease and, in addition to the

landowner‘s royalty, the fraction of nonparticipating royalty also shares

proportionally in any overriding royalty interest reserved in the oil and gas lease,

and the holder of the executive right owes a duty to the nonparticipating royalty

interest owner in establishing the landowner‘s royalty in an oil and gas lease. Id.

The amount to be paid to the owner is determinable upon the execution of some

future lease and is calculated by multiplying the fraction in the royalty reservation

by the royalty provided in a lease. Id.

Here, the deed first purports to reserve one-half of the mineral estate to the

Holders, which reservation, if not later qualified, would have entitled them and

their successors to one-half of any royalty paid under a lease, as well as a one-

half interest in any bonuses and rentals. See Schlittler, 101 S.W.2d at 544–45.

However, the latter part of the deed states that the right to receive bonuses and

lease money, and to develop the mineral estate, is the exclusive right of the

grantee. The language of the deed itself thus shows that the Holders intended to

reserve only a part of the royalty interest to themselves; the later language thus

clarifies the nature of that interest rather than the amount, serving to distinguish

6 the type of interest reserved from the other four parts of a mineral estate. See id.

at 544. The fact that the Holders describe that royalty interest in the qualifying

language of the deed as ―one half of the usual one eighth‖ does not compel the

conclusion that they intended to further limit the previously described one-half of

the total royalty to only a fixed one-sixteenth (i.e., one-half multiplied by one-

eighth). See Luckel, 819 S.W.2d at 462–65. Reading the document as a whole,

it is clear they intended to reserve to themselves and their successors one-half of

―such royalty as may be reserved in any oil, gas, or mineral lease,‖ and that the

―one half of the usual one eighth‖ language is merely an example showing the

type of interest they intended to reserve, not a further limitation. See id. at 464–

65; Schlittler, 101 S.W.2d at 545; cf., e.g., Hudspeth v. Berry, No. 02-09-00225-

CV, 2010 WL 2813408, at *4 (Tex. App.––Fort Worth July 15, 2010, no pet.)

(mem. op.) (holding that deed language reserving an ―undivided 1/40th royalty

interest (being 1/5 of 1/8th)‖ described a fixed 1/40 of whatever fractional royalty

was then being paid and that parenthetical was merely illustrative and did not

change nature of fractional interest being reserved).1

1 We agree with Sundance that those cases involving deeds with minimum royalty language are not applicable here because the 1958 deed does not contain minimum royalty language. See, e.g., Hausser v. Cuellar, 345 S.W.3d 462, 468 (Tex. App.––San Antonio 2011, pet. denied) (en banc); Range Res. Corp. v. Bradshaw, 266 S.W.3d 490, 493–94 (Tex. App.––Fort Worth 2008, pets. denied) (op. on reh‘g). For this reason, Sundance‘s argument that adopting appellees‘ construction of the deed is in accordance with the overruled case of Alford v. Krum, 671 S.W.2d 870 (Tex. 1984), is not persuasive, nor is its argument that the ―one half of one eighth‖ language refers to future leases

7 Accordingly, we conclude and hold that the trial court did not err by

granting summary judgment for appellees and denying Sundance‘s motion for

summary judgment. We overrule Sundance‘s first issue.

Attorney’s Fees

In its second point, Sundance contends that the trial court‘s award of

attorney‘s fees to appellees should be reversed because (a) the trial court should

have granted its motion for summary judgment and not appellees‘, or (b)

alternatively, there is no evidence to support the award of attorney‘s fees to

appellees. Because we have already determined that the trial court did not err by

denying Sundance‘s motion for summary judgment, we need not address that

part of Sundance‘s second issue claiming that it was entitled to attorney‘s fees.

Therefore, we will address only whether there was legally sufficient evidence to

support the award of attorney‘s fees to appellees.

In a declaratory judgment action, the trial ―court may award costs and

reasonable and necessary attorney‘s fees as are equitable and just.‖ Tex. Civ.

Prac. Rem. Code Ann. § 37.009 (West 2008); State & Cnty. Mut. Fire Ins. Co. ex

rel. So. United Gen. Agency of Tex. v. Walker, 228 S.W.3d 404, 407 (Tex.

App.—Fort Worth 2007, no pet.). Whether the fees are reasonable and

necessary are questions of fact. GuideOne Elite Ins. Co. v. Fielder Rd. Baptist

Church, 197 S.W.3d 305, 311–12 (Tex. 2006); State & Cnty. Mut., 228 S.W.3d at

persuasive because the 1958 deed did not describe an existing lease at the time of its execution unlike the deeds in other cases construing future lease language.

8 407. We review reasonableness and necessity of attorney‘s fees for sufficiency

of the evidence. State & Cnty. Mut., 228 S.W.3d at 407.

Sundance has raised only a legal sufficiency challenge to the evidence

supporting the attorney‘s fees award. We may sustain a legal sufficiency

challenge only when (1) the record discloses a complete absence of evidence of

a vital fact; (2) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact; (3) the evidence offered

to prove a vital fact is no more than a mere scintilla; or (4) the evidence

establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co.

v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040

(1999); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of

Error, 38 Tex. L. Rev. 361, 362–63 (1960). In determining whether there is

legally sufficient evidence to support the finding under review, we must consider

evidence favorable to the finding if a reasonable factfinder could and disregard

evidence contrary to the finding unless a reasonable factfinder could not. Cent.

Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller

v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

Texas courts consider eight factors when determining the reasonableness

of attorney‘s fees, including awards made under the Uniform Declaratory

Judgment Act:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;

9 (2) the likelihood . . . that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex.

1997); State & Cnty. Mut., 228 S.W.3d at 408. A trial court is not required to

receive evidence on each of these factors, however. State & Cnty. Mut., 228

S.W.3d at 408.

Sundance contends that appellees‘ counsel did not testify in support of

attorney‘s fees and that the affidavit he presented to the trial court ―offered

minimal, highly conclusory statements.‖ Thus, Sundance contends that

counsel‘s affidavit is no evidence at all. Appellees‘ counsel stated in the affidavit

that he had been licensed to practice law in the State of Texas since 1964, that

he was personally familiar with suits in ―this county similar to‖ this case, and that

he was ―personally familiar with the current normal and reasonable fees charged

10 in such cases.‖ Therefore, he averred that ―[a]n attorney‘s fee of $12,000 is a

reasonable attorney‘s fee to be charged in this case and has been necessarily

incurred by the Defendants in the prosecution of this action.‖ He did not attach

any billing statements to his affidavit. In addition, he averred that he was

―additionally familiar with similar types of cases in this county that are appealed

and the current normal and reasonable attorney‘s fees incurred in such cases‖

and that ―$7,500.00 is a reasonable and necessary attorney‘s fee to be incurred

by the Defendants in the event of each appeal or attempt of an appeal taken by

the Plaintiff.‖

Counsel thus averred that appellees incurred $12,000 in attorney‘s fees,

that he was familiar with the types of fees charged in similar cases in the county,

and that $12,000 was a reasonable and necessary fee. Thus, the trial court

received evidence on the third and seventh factors. An affidavit filed by a

summary judgment movant‘s attorney that sets forth his qualifications, his opinion

regarding reasonable attorney‘s fees, and the basis for his opinion will be

sufficient to support summary judgment, if uncontroverted. Gaughan v. Nat’l

Cutting Horse Ass’n, No. 02-09-00450-CV, 2011 WL 3211217, at *11 (Tex.

App.––Fort Worth July 28, 2011, no pet. h.); Cammack the Cook, L.L.C. v.

Eastburn, 296 S.W.3d 884, 894 (Tex. App.––Texarkana 2009, pet. denied);

Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373 (Tex. App.––San

Antonio 1999, pet. denied). Under Texas law, ―billing records need not be

introduced to recover attorney's fees.‖ Air Routing Int'l Corp. (Canada) v.

11 Britannia Airways, Ltd., 150 S.W.3d 682, 692 (Tex. App.––Houston [14th Dist.]

2004, no pet.); see also In re A.B.P., 291 S.W.3d 91, 99 (Tex. App.––Dallas

2009, no pet.).

In Garcia v. Gomez, the supreme court reversed the court of appeals‘s

opinion concluding that an attorney‘s testimony providing evidence on only the

third and seventh Andersen factors was conclusory and therefore no-evidence of

reasonableness and necessity. 319 S.W.3d 638, 640–41 (Tex. 2010). That

testimony, the only evidence of attorney‘s fees offered, was as follows: ―I‘m an

attorney practicing in Hidalgo County, doing medical-malpractice law/litigation. I

have done it since 1984. For a usual and customary case like this the [sic] fees

for handling it up to the point of dismissal, the reasonable and necessary

attorney‘s fee for handling that is 12,200 dollars . . . .‖ Garcia v. Gomez, 286

S.W.3d 445, 447 (Tex. App.––Corpus Christi 2008), rev’d in part, 319 S.W.3d at

643. The supreme court held that ―[w]hile the attorney‘s testimony lacked

specifics, it was not, under these circumstances, merely conclusory. It was some

evidence of what a reasonable attorney‘s fee might be in this case.‖ 319 S.W.3d

at 641.

The attorney‘s testimony in Garcia is similar to the affidavit testimony from

appellees‘ counsel in this case; in fact, appellees‘ counsel‘s affidavit testimony

went further than the testimony in Garcia when he averred that the fees were

―necessarily incurred by‖ appellees. See Tex. R. Civ. P. 166a(c), (f) (providing

that summary judgment may be based on proper affidavit testimony). Other

12 courts of appeals have concluded that similar affidavit testimony is at least ―some

evidence‖ of reasonable and necessary attorney‘s fees sufficient to survive a

legal sufficiency challenge. See Giron v. Baylor Univ. Med. Ctr., No. 05-09-

00825-CV, 2011 WL 149981, at *5 (Tex. App.––Dallas Jan. 19, 2011, pet.

denied) (mem. op.) (following Garcia v. Gomez in holding that similar affidavit not

conclusory); Peoples v. Genco Fed. Credit Union, No. 10-09-00032-CV, 2010

WL 1797266, at *7 (Tex. App.––Waco May 5, 2010, no pet.) (mem. op.); In re

Estate of Tyner, 292 S.W.3d 179, 184–85 (Tex. App.––Tyler 2009, no pet.);

Shields v. Delta Lake Irrigation Dist., No. 13-01-00622-CV, 2006 WL 1280863, at

*10 (Tex. App.––Corpus Christi May 11, 2006, pet. denied) (mem. op.); Bethel v.

Butler Drilling Co., 635 S.W.2d 834, 841 (Tex. App.––Houston [14th Dist.] 1982,

writ ref'd n.r.e.). But see Eberstein v. Hunter, 260 S.W.3d 626, 630 (Tex. App.––

Dallas 2008, no pet.) (holding similar affidavit conclusory and therefore no

evidence of attorney‘s fees). Accordingly, we conclude and hold that counsel‘s

affidavit here was not conclusory and was therefore sufficient under the

Andersen factors to support the trial court‘s award of $12,000 in attorney‘s fees

and $7,000 in appellate attorney‘s fees. See, e.g., Garcia, 319 S.W.3d at 640–

41.

We conclude and hold that the award of attorney‘s fees is supported by

sufficient evidence. We therefore overrule the second part of Sundance‘s

second issue challenging the sufficiency of the evidence of attorney‘s fees.

13 Although we have concluded that there is legally sufficient evidence

supporting the amount of fees, Sundance also complains that the award of

appellate attorney‘s fees is improper because it is unconditional. An

unconditional award of attorney‘s fees has a chilling effect on the paying party‘s

exercise of legal rights. In re Ford Motor Co., 988 S.W.2d 714, 722–23 (Tex.

1998) (orig. proceeding). Accordingly, an award of appellate attorney‘s fees

must be conditioned on any appeal‘s being unsuccessful. Keith v. Keith, 221

S.W.3d 156, 171 (Tex. App.––Houston [1st Dist.] 2006, no pet.); see In re Ford

Motor Co., 988 S.W.2d at 721. The proper remedy for an unconditional award of

appellate attorney‘s fees is to modify the judgment so that the award depends on

the paying party‘s lack of success on appeal. Hoefker v. Elgohary, 248 S.W.3d

326, 332 (Tex. App.––Houston [1st Dist.] 2007, no pet.). We will therefore

modify the judgment to make the award of appellate attorney‘s fees contingent

upon an unsuccessful appeal. See, e.g., Solomon v. Steitler, 312 S.W.3d 46, 62

(Tex. App.––Texarkana 2010, no pet.). We sustain Sundance‘s second issue in

part.

14 Conclusion

Having sustained part of Sundance‘s second issue

regarding appellate attorney‘s fees, we modify the judgment

to make the award of appellate attorney‘s fees contingent upon an unsuccessful

appeal. We affirm the remainder of the judgment as modified.

TERRIE LIVINGSTON CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

GABRIEL, J. filed a concurring and dissenting opinion.

DELIVERED: October 20, 2011

WANDA JO MOORE, APPELLEES INDIVIDUALLY AND AS TRUSTEE OF THE RUTH HOLDER TESTAMENTARY TRUST; MAXINE

15 HOLDER, INDIVIDUALLY AND AS TRUSTEE OF THE HERBERT HOLDER AND MAXINE HOLDER TRUST; ROBERT E. HOLDER; RICKY JOE HOLDER; TERRY S. HOLDER; PHILIP B. HOLDER; JANILEE HOLDER WISDOM; SCOTTY D. PLASTER; REX L. PLASTER; AND LARRY F. PLASTER

CONCURRING AND DISSENTING OPINION ---------- I agree with the majority‘s opinion that the deed at issue reserved a

―fraction of royalty‖ and that the trial court did not err in its ruling on the

competing motions for summary judgment. I disagree, however, that there was

legally sufficient evidence to uphold the award of attorney‘s fees.

The appellees‘ attorney‘s affidavit—the only evidence offered to support

the award—states, in whole,

I am the attorney of record for the Defendants in the above entitled and numbered cause. I am over eighteen (18) years of age, of sound mind, and fully competent and capable of making this Affidavit. I am a licensed attorney, licensed to practice in the State of Texas, having been licensed to practice since September, 1964. I am personally familiar with suits in this county similar to the above entitled and numbered cause and am personally familiar with the current normal and reasonable fees charged in such cases. An attorney‘s fee of $12,000.00 is a reasonable attorney‘s fee to be charged in this case and has been necessarily incurred by the

2 Defendants in the prosecution of this action. I am additionally familiar with similar types of cases in this county that are appealed and the current normal and reasonable attorney‘s fees incurred in such cases. In the event of an appeal of this case, $7,500 is a reasonable and necessary attorney‘s fee to be incurred by the Defendants in the event of each appeal or attempt of an appeal taken by the Plaintiff. This affidavit is made in furtherance of Defendants [sic] Motion for Summary Judgment.

An uncontroverted affidavit is generally sufficient to support an award of

attorney‘s fees when it ―sets forth his qualifications, his opinion regarding

reasonable attorney‘s fees, and the basis for his opinion.‖ Cammack the Cook,

L.L.C. v. Eastburn, 296 S.W.3d 884, 894 (Tex. App.—Texarkana 2009, pet.

denied) (emphasis added). The affidavit in this case sets forth the attorney‘s

qualifications and his opinion regarding reasonable attorney‘s fees, but it

provides no basis for his opinion. See Garcia v. Gomez, 319 S.W.3d 638, 648

(Tex. 2010) (Johnson, J., dissenting) (disagreeing that an affidavit was probative

evidence of reasonable attorney‘s fees ―because it does not contain the

underlying factual basis on which it rests‖). The reasonableness of an attorney‘s

fee has long been analyzed under the factors set forth in Arthur Andersen & Co.

v. Perry Equip. Corp., 945 S.W.2d 812, 818–19 (Tex. 1997). While there does

not need to be evidence on each factor, the affidavit must set forth facts ―which

would be admissible in evidence‖ for the affidavit to constitute proper summary

judgment evidence. Cammack the Cook, 296 S.W.3d at 894. The affidavit in

this case sets forth no admissible evidence. It does not state what type of fee

arrangement was made, what the attorney‘s hourly fee was, what he actually

3 charged his client, the amount of time it took, or indeed, that he actually

performed any of the work. See Garcia, 319 S.W.3d at 645 (Jefferson, J.,

dissenting) (noting that the affidavit did not ―state an amount of fees actually

charged‖ or ―the amount of time [the attorney] spent on this case or even his

hourly rate‖ and noting that ―[i]n no other area of the law would we credit such

[statements] as ‗evidence‘‖). It is conclusory and, as such, cannot support an

award of attorney‘s fees.

The majority points to a number of cases with ―similar affidavit testimony‖

which was found sufficient. However, of those opinions which contain a full

description of the affidavit, the affidavit in this case falls below them all. See

Giron v. Baylor Univ. Med. Ctr., No. 05-09-00825-CV, 2011 WL 149981, at *6

(Tex. App.—Dallas Jan. 19, 2011, pet. denied) (mem. op.) (stating that the

attorney provided his services based on the fee agreement); Peoples v. Genco

Fed. Credit Union, No. 10-09-00032-CV, 2010 WL 1797266, at *7 (Tex. App.—

Waco May 5, 2010, no pet.) (mem. op.) (noting that the attorney ―investigated the

facts surrounding this matter, [and] spent reasonable time in the defense of the

suit,‖ and that the $7,500 amount was reasonable ―based on the work performed

by . . . counsel, the traditional elements for determining a reasonable fee, the

customary fees for work of a similar nature, [and] the responsibility assumed‖); In

re Estate of Tyner, 292 S.W.3d 179, 184 (Tex. App.—Tyler 2009, no pet.)

(stating that attorney swore to personal knowledge of the services rendered).

Shields v. Delta Lake Irrigation Dist., No. 13-01-00622-CV, 2006 WL 1280863, at

*8 (Tex. App.—Corpus Christi May 11, 2006, pet. denied) (mem. op.), simply

states that an affidavit by counsel ―supported its request‖ with no further details

4 and thus provides no support for the majority‘s position. Bethel v. Butler Drilling

Co., 635 S.W.2d 834, 839 (Tex. App.—Houston [14th Dist.] 1982, writ ref‘d

n.r.e.), involved testimony from the stand, not an affidavit, and did not recount all

of the attorney‘s testimony.

I understand that the majority feels bound by the supreme court‘s ruling in

Garcia.2 However, I agree with the dissents by Justice Jefferson and Justice

Johnson that the majority‘s holding in Garcia is a significant departure from

Arthur Andersen. See Garcia, 319 S.W.3d at 648 (Johnson, J., dissenting)

(―Without saying why, the Court departs significantly from the evidence

requirements for determining reasonable fees we set out in Arthur Andersen.‖).

To allow ipse dixit by a witness to transform into admissible evidence simply

because it is the ipse dixit of an attorney creates a separate standard for expert

testimony by attorneys that is enjoyed by no other occupation. To rationalize that

disparate treatment of attorneys by stating that an opposing attorney has the

means and knowledge to contest the requested amount is to effectively reduce

the burden of proof on the party seeking attorney‘s fees. See id. (Johnson, J.,

dissenting) (―[I]t is hard to see valid reasons for holding that conclusory

testimony, which according to long-standing precedent has no probative force, is

2 The majority in Garcia found the affidavit in that case to be sufficient. ―While the attorney‘s testimony lacked specifics, it was not, under these circumstances, merely conclusory.‖ 19 S.W.3d at 641 (emphasis added). It should be acknowledged that Garcia was a case decided under the Texas Medical Liability Act, which requires a trial court, upon proper motion, to dismiss a claim and award reasonable attorney‘s fees and costs to a physician or provider. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(b)(2) (West 2011). The above-quoted language of the majority implicitly limits the applicability of the holding to the facts of a case where attorney‘s fees are not discretionary.

5 converted to evidence with probative value because an adverse party has

information or knowledge about matters underlying the testimony.‖). Surely we

should not favor the legal profession by such a holding. Further, the facts of this

case are distinguishable from Garcia in that this case does not arise under a

statute requiring a mandatory award of attorney‘s fees. I would reverse the trial

court‘s award of attorney‘s fees to the appellees.

LEE GABRIEL JUSTICE