Coward v. Gateway Nat. Bank of Beaumont
| Decision Date | 29 August 1974 |
| Docket Number | No. 7595,7595 |
| Citation | 515 S.W.2d 129 |
| Parties | Claude C. COWARD et al., Appellants, v. GATEWAY NATIONAL BANK OF BEAUMONT, Appellee. |
| Court | Texas Court of Appeals |
G. I. Low, c/o Orgain, Bell & Tucker, Gordon R. Pate, Beaumont, for appellants.
Pat T. Peyton, Jr., Philip Dunlap, Beaumont, for appellee.
This is an appeal from an order of the trial court granting plaintiff's motion for summary judgment. The only point of error complains of such action because such judgment included an attorney's fee about which it is claimed that there is a genuine issue of fact.
Plaintiff, Gateway National Bank, filed suit against Claude C. Coward and Daniel Dan Spell, as partners, and doing business as Chrysler Marine of Beaumont, on four promissory notes. Copies of the notes were attached to the petition, and plaintiff's attorney swore they were true copies of the originals. An amended petition was filed alleging that the notes provided for reasonable attorney's fees and praying for a fee of $2,000.00. The copies of the notes and an affidavit were attached in which the attorney also sware that plaintiff was the present owner and holder of the notes. Plaintiff then filed its motion for summary judgment together with an affidavit in which it is stated that $2,000.00 is a reasonable attorney's fee in this case. Such motion was granted and judgment rendered that plaintiff have judgment against defendants in the total sum of $11,760.75 and attorney's fee of $2,000.00. The parties will be referred to here as they were in the trial court.
Article 2226, Vernon's Ann.Civ.St., as amended in 1971, now provides the following, in part:
We follow Superior Stationers Corp. v. Berol Corporation, 483 S.W.2d 857, 859 (Tex.Civ.App., Houston--1st Dist., 1972, no writ), in holding that the record in the case before us supports the awarding of an attorney's fee. Under Article 2226, V.A.C.S., the current State Bar Minimum Fee Schedule is prima facie evidence of the reasonableness of attorney's fees, and in the absence of opposing evidentiary data the trial court was authorized to allow a reasonable attorney's fee. Defendant did not place in issue the question of the reasonableness of the attorney's fees. See Fisher v . Howard, 389 S.W.2d 482, 488 (Tex.Civ.App., Dallas, 1965, no writ), invoking the rule set out in Kuper v. Schmidt, 161 Tex. 189, 338 S.W .2d 948, 951 (1960), that if the maker of the note expected to defeat the motion for summary judgment by showing an issue of fact on the question of reasonableness of attorney's fees, it was incumbent upon him to come forward with evidence sufficient to raise that question.
The Minimum Fee Schedule of the State Bar of Texas, of April 1968, shows the contingent fee to be 33 1/3 percent, and non-contingent fee to be 16 2/3 percent, each as a minimum. Our record is silent as to whether the fee in our case is contingent or non-contingent; therefore, we apply the lesser percentage of the two. The recovery in this case is $39.88 in excess of such minimum fee.
If within ten days plaintiff will remit the sum of $39.88, the judgment will be reformed and affirmed; otherwise, it will be reversed and remanded.
The judgment is affirmed, conditionally.
In the note, defendant agreed to pay a reasonable attorney's fee in the event of default. Art. 2226, V.A.C.S., as amended says the amount prescribed in the State Bar Minimum Fee Schedule shall be prima facie evidence of a Reasonable attorney's fee. It also says in non-jury cases the court may take judicial knowledge of such schedule and of the contents of the case file in determining the Amount of the attorney's fees without the necessity of hearing further evidence.
The plain language of this amended statute covers both the Amount and the Reasonableness of the attorney's fees and says the court does not have to hear Any further evidence. No court in Texas, in any case we have found, in construing this amendment to Art. 2226 has come to the conclusion that a summary judgment case is not a 'non-jury' case in the sense used in such statute. We do not believe such a construction would be logical as the stated purpose of Rule 166--A, Texas Rules of Civil Procedure, is to provide a means by which causes of actions or defenses thereto with no real merit are eliminated without the necessity and cost of judicial time required by long drawn-out trial . The obvious purpose of Art. 2226 is to make it possible for a litigant to recover an attorney's fee in a summary judgment proceeding.
Art. 2226 does no more than make the minimum fee schedule prima facie evidence of the Amount and Reasonableness, and if the defendant had desired to raise a fact issue as to either of these, he could have done so by filing opposing affidavits as provided for in Rule 166--A.
This court is aware that Himes v. American Home Fence Co., 379 S.W .2d 290 (Tex.1964), was the law in Texas before Art. 2226 was amended in 1971, but a reasonable construction of such article demonstrates that the law was changed by such amendment. To interpret amended Art. 2226 to mean it has no application to summary judgment cases would result in it having little beneficial effectiveness, and the real purpose of Rule 166--A would be defeated.
Associate Justice Barron on the 14th Court of Civil Appeals in Houston placed such interpretation upon Art. 2226 in Duncan v. Butterowe, Inc., 474 S.W.2d 619 (Tex.Civ.App., Houston--14 Dist., 1971, no writ), despite the fact that the Chief Justice of that court in an article, 'Texas Summary Judgment Practice' in 13 South Texas L.J. 1, 6 (1971), expressed this opinion:
'Some of the problems with reference to the recovery of attorney's fees in summary judgment proceedings may have been solved by the recent amendment to Tex.Rev.Civ.Stat.Ann., Art. 2226.'
Justice Peden, of the 1st Court of Civil Appeals in Houston, came to a contrary conclusion in Superior Stationers Corp. v. Berol Corporation, 483 S.W.2d 857 (Tex.Civ.App., Houston--1st Dist., 1972, no writ), some six months after the Duncan case, supra. That court affirmed a summary judgment allowing attorney's fees. Obviously, the Supreme Court of this state will have to resolve this question.
There are cases in the State of Texas holding our courts may not take 'judicial notice' of certain facts in summary judgment cases, including: Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961); Boswell v. Handley, 397 S.W.2d 213 (Tex.1965), and Perkins v. Crittenden, 462 S.W.2d 565 (Tex.1970). However, it is noted that all of these cases were before the 1971 Amendment to Art. 2226, and more important, none involved the question of a court taking 'judicial notice' of some fact which such court was specifically authorized to take by statute. This all brings us back to the primary question for determination, and that is whether or not a summary judgment is a 'non-jury case' in the sense that term is used in Art. 2226. Placing this construction upon Art. 2226 as amended, gives a reasonable meaning to both the statute and Rule 166--A and makes it possible for the courts to attain the obvious intention of the Legislature.
Motion for rehearing overruled.
Upon reconsideration of the question presented by this appeal, I now withdraw my concurrence in the affirmation of the cause and register my dissent to the affirmation of the summary judgment. In doing so, I particularly disavow the statement in the majority opinion on rehearing that 'the primary question for determination . . . is whether or not a summary judgment is a 'non-jury case' in the sense that term is used in Art. 2226.' The primary question is the same as that which has always confronted this court: Did plaintiff establish, as a matter of law, its right to recover $1,960.12 as 'reasonable attorney's fees' in its suit upon the note?
I supplement the statement of the case only briefly in order to bring the discussion into focus. The only summary judgment proof in the record with reference to the reasonableness of the attorney's fees is to be found in the affidavit of plaintiff's counsel wherein he swore that he was competent to testify and continued:
1
No summary judgment proof established what fee was considered to be reasonable under the State Bar Minimum Fee Schedule; the fee schedule was not made a part of the summary judgment proof; the record does not disclose what amount plaintiff had agreed to pay its attorney; there is no proof as to the time spent on the litigation by the attorney and the intricacies, if any, of the case; nor does the summary judgment proof disclose whether the fee suggested by counsel was based upon a contingent or non-contingent arrangement with the plaintiff.
Art. 2226, V.A.C.S., as amended in 1971, contains two sentences pertinent to this case:
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