Haden v. Sacks

• Decision Date: 07 May 2009
• Docket Number: No. 01–01–00200–CV.,01–01–00200–CV.
• Citation: 332 S.W.3d 503
• Court: Texas Court of Appeals
• Parties: Charles McIntyre HADEN, Jr., Individually, and Charles McIntyre Haden, Jr. & Company d/b/a Haden & Company, Appellants,v.DAVID J. SACKS, P.C. d/b/a Sacks & Associates, Appellee.

332 S.W.3d 503

Charles McIntyre HADEN, Jr., Individually, and Charles McIntyre Haden, Jr. & Company d/b/a Haden & Company, Appellants,

v.DAVID J. SACKS, P.C. d/b/a Sacks & Associates, Appellee.

No. 01–01–00200–CV.

Court of Appeals of Texas, Houston (1st Dist.).

May 7, 2009.Rehearing En Banc Overruled

Sept. 11, 2009.

Brian D. Womac, Womac & Associates, Richard N. Countiss, Countiss Law Firm, Houston, TX, for Appellant.David J. Sacks, Sacks Law Firm, Houston, TX, for Appellee.Panel consists of Chief Justice RADACK and Justices HIGLEY and NUCHIA.^*

OPINION ON REMAND

SHERRY RADACK, Chief Justice.

This appeal is before us on remand from the Supreme Court of Texas. David J. Sacks P.C. v. Haden, 266 S.W.3d 447 (Tex.2008) (per curiam). Having reinstated the summary judgment rendered in favor of appellee, David J. Sacks, P.C. (Sacks) d/b/a Sacks & Associates (collectively referred to as the law firm) on the law firm's claim for breach of the attorney's fee agreement between the law firm and its client, appellants, Charles M. Haden, Jr., individually (Haden), and Charles McIntyre Haden, Jr. & Company d/b/a Haden & Company (the company), the supreme court has instructed this Court to address the company's remaining issues.¹ In these issues, Haden and the company challenge the final judgment rendered in favor of the law firm (1) for $120,887.50 in attorney's fees in connection with pursuing the breach of contract claim and (2) on the company's counterclaims for violations of the Deceptive Trade Practices and Consumer Protection Act (DTPA),² breach of fiduciary duty, breach of contract, and fraud. We affirm.

Procedural Background

The law firm's live pleadings asserted claims for (1) a “suit on sworn account” by claiming that the company accepted the services and became bound to pay the law firm on an open account, see Tex.R. Civ. P. 185, (2) breach of contract, (3) quantum meruit, and (4) DTPA violations for counterclaims later filed against the law firm. The company answered the petition and asserted its own counterclaims against the law firm for fraud, DTPA violations, unconscionable course of action, breach of contract, and breach of fiduciary duty.

The law firm sought traditional and no-evidence summary judgment on the company's counterclaims. The company's response to the motion for summary judgment included a challenge to the affidavit by Sacks that had been attached to the law firm's motion. The company also offered Haden's affidavit and other evidentiary exhibits. In addition to responding on the merits, the law firm's reply included an amended, extensively detailed affidavit executed by Sacks.

On May 11, 2000, the trial court rendered a take-nothing summary judgment in favor of the law firm on the company's counterclaims for unconscionable action, fraud, and violations of the DTPA. On June 5, 2000, the trial court rendered a take-nothing summary judgment on the company's counterclaims for breach of fiduciary duty and breach of contract.³

The law firm also sought traditional and no-evidence summary judgment for its breach of contract claim by asserting its right to judgment as a matter of law for unpaid attorney's fees amounting to $30,314.38, pursuant to section 38.001 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 38.001–.006 (Vernon 2008). The trial court rendered an interlocutory summary judgment in favor of the law firm on its breach-of-contract claims for $30,314.38, plus interest. The trial court also ruled that the law firm was entitled to attorney's fees expended in pursuing the contract claim, but reserved ruling on the amount of reasonable attorney's fees. The supreme court affirmed this portion of the trial court's final judgment. Haden, 266 S.W.3d at 450.

Two months later, the law firm sought a traditional summary judgment against the company on the reasonableness of the attorney's fees incurred in seeking the summary judgment on its breach-of-contract claim. The trial court then rendered a final judgment incorporating its earlier ruling on the contract and awarded the law firm an additional $75,887.50 for attorney's fees incurred in pursuing the contract claim, with contingent fees totaling $45,000 for appeals to an intermediate appellate court and for seeking a petition for review in the supreme court. The first paragraph of the judgment recites that Haden and the company filed no response to the law firm's motion concerning the attorney's fees sought for pursuit of the contract claim. This appeal challenges this portion of the final judgment, which rendered final the trial court's orders rendering summary judgment in favor of the law firm on the company's counterclaims. Haden and the company did not supersede this final judgment, which prompted postjudgment collection and enforcement procedures. These culminated in the law firm's obtaining turnover relief, for which the firm sought attorney's fees pursuant to section 31.002(e) of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem.Code Ann. § 31.002(e) (Vernon Supp. 2008). The law firm prevailed again and recovered a judgment for $90,000 in attorney's fees. Haden and the company challenge that judgment in Cause No. 01–03–00025–CV.

Standard of Review

We review summary judgments de novo, Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005), and follow the usual standards that apply when a summary judgment order grants relief without specifying grounds. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001); Stephens v. Dolcefino, 126 S.W.3d 120, 125–26 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). We consider all summary judgment grounds on which the trial court ruled and that the appealing party preserves for appellate review that are necessary for final disposition of the appeal. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).

The law firm moved for summary judgment under two authorizing rules, rule 166a(c) (“traditional” summary judgment) and 166a(i) (“no-evidence” summary judgment). See Tex.R. Civ. P. 166a(c),(i). For its breach-of-contract and attorney's fees claims, the law firm moved for traditional summary judgment under rule 166a(c). For Haden's and the company's counterclaims, the law firm sought both a traditional summary judgment and a no-evidence summary judgment under rule 166a(i). We apply the standard of review appropriate for each type of summary judgment. See Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (166a(i) no-evidence standard); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997) (166a(c) traditional standard); see also City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005) (“[T]he test for legal sufficiency should be the same for summary judgments, directed verdicts, judgments notwithstanding the verdict, and appellate no-evidence review.”); Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006) (applying City of Keller standard to no-evidence summary judgment) (citing City of Keller, 168 S.W.3d at 823).

Challenge to Section 38.001(8) Attorney's Fees

Haden's and the company's first issue challenges the final summary judgment rendered in this cause, which awarded the law firm $120,887.50 for attorney's fees and costs and includes $75,887.50 awarded in connection with pursuing the law firm's claim for breach of contract.⁴ Haden and the company challenge the fees awarded to the law firm in pursuing the firm's claim for breach of contract, on the grounds that (1) the law firm's motion did not segregate between recoverable and nonrecoverable grounds, (2) Sacks's affidavit in support of the fee recovery is conclusory and lacks supporting evidence, and (3) the “attendant circumstances” of awarding attorney's fees in an amount that is four times the amount in controversy creates a fact issue per se, despite Haden's and the company's failure to respond to the motion for summary judgment.

Having prevailed and recovered damages on its claim for breach of contract by the interlocutory summary judgment rendered in its favor, the law firm was entitled to recover reasonable attorney's fees and costs pursuant to chapter 38 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 38.001(8); Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.1997) (holding that party must prevail and recover damages to be entitled to attorney's fees under section 38.001(8)).

The law firm offered the following affidavit by Sacks, its principal, in support of its motion for traditional summary judgment for attorney's fees, as authorized by section 38.001(8) of chapter 38:

My name is David J. Sacks, I am over the age of twenty-one (21) years, and am of sound mind and fully competent to make this affidavit. I am the President of David J. Sacks, P.C., d/b/a Sacks & Associates (“the Lawfirm”), I am also the custodian of records for David J. Sacks, P.C., d/b/a Sacks & Associates, and I have personal knowledge of all matters stated herein whose facts are true and correct.

1. I am an attorney licensed to practice law in the State of Texas and have been since 1985. I handle both the trial and appellate aspects of civil litigation type cases. I am Board Certified in Civil Appellate law by the Texas Board of Legal Specialization. I am familiar with the fees charged for cases of this type, in Houston, Harris County, Texas. Based upon:

a. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

b. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

c. the fee customarily charged in Houston, Harris County, Texas for similar legal services;

d. the amount involved and the results obtained;

e. the time limitations imposed by the client or by the circumstances;

f. the nature and length of...