Daniels v. Allen, 12-90-00002-CV

• Decision Date: 31 May 1991
• Docket Number: No. 12-90-00002-CV,12-90-00002-CV
• Parties: Wendell David DANIELS, Appellant, v. Sheila R. ALLEN, Appellee.
• Court: Texas Court of Appeals

Page 278

811 S.W.2d 278

Wendell David DANIELS, Appellant, v. Sheila R. ALLEN, Appellee.

No. 12-90-00002-CV.

Court of Appeals of Texas Tyler.

May 31, 1991.

Eldred Smith, Longview, for appellant.

Ron White, Dallas, for appellee.

RAMEY, Chief Justice.

This is an appeal from a judgment wherein appellant was found to be the natural father of appellee's child. Appellant was ordered to pay child support and other expenses, and conservatorship of the minor child was established. We will affirm.

The only issue on appeal relates to the award of attorney's fees by the trial court against appellant. In two points of error appellant contends first that the trial court erred in awarding any attorney's fees, asserting that there is no pleading to support such an award; and second, that the award of one-half of the fees as costs and necessities was likewise unsupported by any pleading.

In her first amended original petition appellant alleged that:

It was necessary to secure the services of H. Ron White, a licensed attorney, to preserve and protect the child's rights. Respondent, WENDELL DAVID DANIELS, should be ordered to pay a reasonable attorney's fee, and a judgment should be rendered in favor of this attorney and against the Respondent; or, in the alternative, such reasonable attorney's fee should be taxed as costs and should be ordered paid directly to the undersigned attorney.

The amended petition included allegations of, but did not contain a prayer specifically asking for attorney's fees or costs. The prayer simply asked that citation and notice issue, that appellant be established as the child's father and appropriate orders be entered for conservatorship and support, and for general relief.

During the hearing on the issues of conservatorship and support, appellee called her attorney, H. Ron White, to testify about attorney fees. Appellant's objection to White's testimony was in regard to the failure to designate White as an expert witness. White testified as to the time expended on the case by himself and assisting attorneys Mary Lou Tevebaugh and Billy Ray Martin, as well as the hourly rate charged for the services.

The trial court entered its judgment wherein it ordered:

[Appellant] shall pay to H. RON WHITE for his services to SHEILA RENEE ALLEN, attorney's fees and costs in the amount of $31,500.00.

IT IS FURTHER ORDERED AND DECREED that one-half of the $31,500.00 are assessed as costs and awarded as necessaries to the child and shall be paid as child support on the following schedule, until one-half is satisfied:

a. $4,500.00 within 30 days of the signing of this decree;

b. $11,250.00 to be paid in installments of $2,812.00 beginning September 15 1989, ($2812.00), November 1, 1989 ($2812.00), May 1, 1990 ($2812.00).

IT IS FURTHER ORDERED AND DECREED H. RON WHITE shall have judgment against [Appellant] for $15,750.00 the remaining one-half of attorney's fees, for which let execution issue.

A similar disposition was made for $2,500 of attorney's fees to Mary Lou Tevebaugh and $500 of attorney's fees to Billy Ray Martin. No objection was voiced on the basis of a lack of pleadings for attorney's fees.

We find that appellee adequately pleaded for attorney's fees as awarded in the judgment. It is well established that a judgment must be based upon pleadings. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979). The key to determining whether a cause of action has been pleaded is whether there are sufficient allegations to give fair notice of the claim, not whether certain magic words are used in certain portions of the petition. See Stoner, 578 S.W.2d at 683; Westchester Fire Insurance Co. v. Nuckols, 666 S.W.2d 372, 375 (Tex.App.--Eastland 1984, writ ref'd n.r.e.). A prayer for general relief will support any relief raised by the...