Good v. Smith County Judge

• Decision Date: 12 April 2011
• Docket Number: No. 06–10–00024–CV.,06–10–00024–CV.
• Citation: 339 S.W.3d 260
• Parties: Ken W. GOOD, Appellant,v.Smith County Judge, Joel P. BAKER and Commissioner Precinct No. 1, Joann Fleming, Appellees.
• Court: Texas Court of Appeals

339 S.W.3d 260

Ken W. GOOD, Appellant,

v.Smith County Judge, Joel P. BAKER and Commissioner Precinct No. 1, Joann Fleming, Appellees.

No. 06–10–00024–CV.

Court of Appeals of Texas, Texarkana.

Submitted Feb. 8, 2011.Decided March 25, 2011.Rehearing Overruled April 12, 2011.

Ken W. Good, Cynthia Stephens Kent, Kent, Good, Anderson & Bush, PC, Tyler, TX, for appellant.David R. Iglesias, Robert S. Davis, Flowers Davis, PLLC, Tyler, TX, for appellees.Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

Whether and how Smith County ¹ might get a new jail has been an ongoing public issue. Recently, in some fallout from that debate, Ken W. Good sought a judgment declaring that Joel P. Baker, the Smith County Judge, and JoAnn Fleming, the Commissioner for Smith County Precinct Number 1, had violated ² the Texas Open Meetings Act (TOMA) by attending meetings to develop a jail plan in secret.³ He sought “mandamus/injunction” seeking to “stop, prevent, or reverse these violations and any potential violations in the future.” ⁴ Trial to a jury resulted in a quite cryptic judgment, which merely recited the jury verdict and awarded Baker and Fleming attorneys' fees in the amount of $62,338.70.

On appeal, Good argues that this judgment is not final because it does not address his claims for declaratory judgment and injunctive relief. He also argues that the trial court erred in awarding attorneys' fees in the absence of a pleading to support the award. Good challenges the legal sufficiency of the trial court's findings of fact and complains specifically about the trial court's admission of the attorneys' bills and affidavits in support of the reasonableness and necessity of the attorneys' fees. We affirm, because (1) the trial court's judgment is final, (2) the award of attorneys' fees is supported by a pleading, (3) the award of attorneys' fees is supported by sufficient evidence, and (4) admitting the affidavits and bills into evidence was harmless error.

(1) The Trial Court's Judgment Is Final

In his first issue, Good questions the finality of the trial court's cryptic judgment. In its entirety, the body of the judgment reads:

The aforementioned case came to trial in this Court during the week of September 21, 2009. After a trial on the merits to a jury, the jury found for Defendants. After the trial, on December 11, 2009, the Court considered Defendant's Motion of Attorneys' Fees and Plaintiff's Response thereto. The Court after having considered the pleadings and arguments of counsel, the Court finds that Defendants are entitled to attorneys' fees and costs in the amount of $62,338.70.

IT IS THEREFORE ADJUDGED AND DECREED that Plaintiff shall reimburse Defendants for reasonable attorneys' fees and costs in the amount of $62,338.70.

Good complains that the judgment is not final, since it is just an award of attorneys' fees, not any ruling on his request for declaratory judgment or mandamus/injunction.⁵

This Court has jurisdiction only over appeals from final decisions of trial courts and from a few, statutorily listed interlocutory orders. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex.2001); see TEX. CIV. PRAC. & REM.CODE ANN. § 51.014 (Vernon 2008). It can be a difficult task to answer the question of finality when a judgment lacks clarity. Given that “all too often judgments which were obviously intended to be final were being held interlocutory because of careless draftsmanship,” the Texas Supreme Court employs a “long recognized” “presumption of finality for judgments that follow a trial on the merits.” Vaughn v. Drennon, 324 S.W.3d 560, 562 (Tex.2010); Moritz v. Preiss, 121 S.W.3d 715, 718 (Tex.2003); N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 898 (Tex.1966) (origin of “ Aldridge presumption”). The Aldridge presumption states:

When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to [our procedural rules,] it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.

400 S.W.2d at 897–98. Under the Aldridge presumption, “a trial court's judgment need not expressly dispose of all issues and claims in order to be final.” Vaughn, 324 S.W.3d at 562. “If there is any doubt as to the judgment's finality, then ‘[f]inality must be resolved by a determination of the intention of the court [as] gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties.’ ” Id. at 563 (quoting Lehmann, 39 S.W.3d at 203).

We conclude that the trial court judgment is final. The judgment is titled “Final Judgment.” It was entered after a jury trial on the merits and a subsequent bench trial on attorneys' fees. Because the jury found Baker and Fleming did not violate TOMA, there was no practical need for the court to address declaratory judgment and mandamus/injunction claims, which would have required a predicate finding against Baker and Fleming. The record reveals nothing to otherwise “indicate the trial court did not intend to finally dispose of the entire case.” In re Guardianship of Moon, 216 S.W.3d 506, 509 (Tex.App.-Texarkana 2007, no pet.) (citing Moritz, 121 S.W.3d at 719). Moreover, there was no motion by defendants seeking entry of any further judgment, or any further request or suggestion made by Good to the trial court seeking action on his claims for declaratory judgment and/or the mandamus/injunction. While, admittedly, there is no explicit legal declaration within this judgment of the legal effect of the jury verdict, the trial court later denied a motion for judgment non obstante veredicto filed by Good, strongly suggesting the trial court's intent that reciting the jury's verdict in the “Final Judgment” indicated the trial court's decision on the merits. All those factors are consistent with the application of the Aldridge presumption. See Aldridge, 400 S.W.2d at 897–98. The trial court's judgment was final and appealable. See Moon, 216 S.W.3d at 508–09.

(2) The Award of Attorneys' Fees Is Supported by a Pleading

A jury trial was held in September 2009 on the underlying issues of the Open Meetings Act. Before jury deliberation, the parties entered into the following stipulation entered into the record: ⁶

And that counsel for the Plaintiff and Defendant have agreed and stipulated that we're not going to submit the issue of attorneys fees to the jury, and instead we would reserve that and after the trial we'll either have stipulations with respect to that issue or submit it to the Court for the Court's consideration if to assess and how much to assess.

On December 4, 2009, approximately three months after receiving a favorable jury verdict, Baker and Fleming filed a motion for attorneys' fees under TOMA and the Uniform Declaratory Judgment Act (UDJA). At the conclusion of the bench trial on attorneys' fees held December 11, 2009, the trial court awarded Baker and Fleming $62,338.70.

Good argues that no affirmative pleading requesting attorneys' fees was filed, in that Baker and Fleming's answer requested merely that they be “award[ed] all other relief to which [they are] entitled.”

The decision to grant or deny attorneys' fees under TOMA and the UDJA ⁷ is within the trial court's discretion and cannot be reversed absent an abuse of discretion. Swate v. Medina Cmty. Hosp., 966 S.W.2d 693, 701 (Tex.App.-San Antonio 1998, pet. denied); Estopar Holdings, Inc. v. Advanced Metallurgical Tech., Inc., 876 S.W.2d 205, 210 (Tex.App.-Fort Worth 1994, no writ).

“Absent a mandatory statute, a trial court's jurisdiction to render a judgment for attorney's fees must be invoked by pleadings, and a judgment not supported by pleadings requesting an award of attorney's fees is a nullity.” Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 884 (Tex.App.-Dallas 2009, no pet.) (quoting State v. Estate of Brown, 802 S.W.2d 898, 900 (Tex.App.-San Antonio 1991, no writ) and citing In re Pecht, 874 S.W.2d 797, 803 (Tex.App.-Texarkana 1994, no writ)). In TOMA and UDJA actions, an award of attorneys' fees is permissive, not mandatory. See TEX. CIV. PRAC. & REM.CODE ANN. § 37.009 (Vernon 2008); TEX. GOV'T CODE ANN. § 551.002 (Vernon 2004).⁸ Therefore, to be entitled to an award of attorneys' fees under TOMA or the UDJA, Baker and Fleming were required to file an affirmative pleading requesting them, unless the issue was waived or tried by consent. Alan Reuber Chevrolet, 287 S.W.3d at 884; see Klaver v. Klaver, 764 S.W.2d 401, 405 (Tex.App.-Fort Worth 1989, no writ); Wolters v. White, 659 S.W.2d 885, 888–89 (Tex.App.-San Antonio 1983, writ dism'd).

We find that the motion for attorneys' fees filed by Baker and Fleming—even though it was filed three months after the jury's verdict—constituted a written pleading supporting the attorneys' fee award. ⁹ This case is similar to the Swate case. See Swate, 966 S.W.2d 693. In that case, Tommy Swate filed a petition for declaratory judgment and injunctive relief alleging violations of TOMA committed by the Medina County Hospital board. Id. at 695–96. In a bench trial, the judge denied relief sought in Swate's petition. Id. at 696. Before final judgment was entered, the hospital filed a motion for attorney's fees, and the court granted it. Id. Swate argued that the trial court erred in awarding attorney's fees, because the Hospital's pleadings did not support such an award. Id. at 701. Our sister court in San Antonio rejected Swate's argument, reciting the following:

The trial court has discretion to grant a party's request for a post-verdict, pre-judgment trial amendment unless “the opposing party presents evidence of surprise or the amendment asserts a new cause of action, and thus is prejudicial...