Landon v. Jean-Paul Budinger, Inc.

• Decision Date: 11 February 1987
• Docket Number: No. 3-86-018-CV,JEAN-PAUL,3-86-018-CV
• Citation: 724 S.W.2d 931
• Parties: Robert LANDON, Appellant, v.BUDINGER, INC., Appellee.
• Court: Texas Court of Appeals

Page 931

724 S.W.2d 931

Robert LANDON, Appellant, v. JEAN-PAUL BUDINGER, INC., Appellee.

No. 3-86-018-CV.

Court of Appeals of Texas,

Austin.

Feb. 11, 1987.

William T. Hall, William T. Hall & Associates, Austin, for appellant.

Claude E. Ducloux, Robinson, Felts, Starnes, Angenend & Mashburn, Austin, for appellee.

Before POWERS, GAMMAGE and ABOUSSIE, JJ.

POWERS, Justice.

Following a jury trial, Robert Landon recovered judgment against Jean-Paul Budinger, Inc. in causes of action arising out of a construction contract, in the principal amount of $3,973.37 together with $4,500.00 in attorney's fees. In a single point of error, Landon contends the trial court erred in directing a remittitur of $1,500.00 from the amount of $6,000.00 which the jury found was his reasonable and necessary attorney's fee. ¹ We will affirm the judgment of the trial court.

THE AWARD OF ATTORNEY'S FEES

Landon prayed for attorney's fees in a reasonable amount based upon a contract provision entitling him to such fees or based upon the provisions of former Tex.Rev.Civ.Stat.Ann art. 2226 (Supp.1986) (now Tex.Civ.Prac. & Rem.Code Ann. § 38.001 et seq. (1986)). As mentioned above the jury determined that $6,000.00 was a reasonable amount for necessary attorney's fees incurred by Landon. The evidence given on the question of attorney's fees is that Landon's attorney required 71 hours to complete the trial of the case, performing the familiar aspects of any suit of this nature (which were specified); and, that $100-$150 was a reasonable hourly charge for attorneys for the kind of work involved, in view of the basic nature of the case and its various particular aspects. Thus, the $6,000.00 finding is unquestionably within the evidence heard by the jury.

When damages are not liquidated, it is axiomatic that their ascertainment is a question of fact for the jury. But the jury's determination, even when within the evidence, remains subject to the trial court's control; for example, it may grant a new trial, conditioned on a remittitur, when the jury's determination is "manifestly too small or too large." Tex.R.Civ.P. 328 (West 1986); Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959). When attorney's fees are recoverable as an item of damages, in a jury case, the trial court must determine independently what are reasonable and necessary attorney's fees in the case, in view of the whole record, the legal rules applicable to the award of such fees, and the trial judge's experience as a lawyer and judge. Southland Life Insurance Co. v. Norton, 5 S.W.2d 767 (Tex.Comm.App.1928, holding approved); Argonaut Insurance Company v. ABC Steel Products Co., Inc., 582 S.W.2d 883 (Tex.Civ.App.1979, writ ref'd n.r.e.) and decisions cited therein. If the jury's finding as to attorney's fees exceeds the amount settled upon by the trial court as being reasonable and necessary the court may award the lower sum. Id. The action of the trial court, when directing a remittitur to accomplish that result, may be reversed on appeal only if the appellate court concludes that the trial court "abused its discretion" in directing the remittitur. Flanigan v. Carswell, supra. For example, under a statute which provided that the trial court may award "reasonable and necessary attorney's fees as may seem equitable and just," the Supreme Court of Texas has stated that

the grant or denial [altogether] of attorney's fees ... lies within the discretion of the trial court, and its judgment will not be reversed on appeal absent a clear showing that it abused that discretion.

Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.1985) (parenthetical statement added). In the present appeal, we must therefore determine whether the trial court "abused its discretion" in directing a remittitur in a sum $1,500.00 less than the $6,000.00 found by the jury to be a reasonable and necessary attorney's fee. Landon contends the trial court "abused its discretion;" Budinger contends the opposite. We must, therefore, first assign meaning to the "abuse of discretion" standard that controls our decision on appeal. ²

THE "ABUSE OF DISCRETION" STANDARD FOR APPELLATE REVIEW

It has been said that "abuse of discretion" is a concept "not easily defined." Bennett v. Northcutt, 544 S.W.2d 703, 706 (Tex.Civ.App.1976, no writ). The problem seems to be that judicial attempts to define the concept almost routinely take the form of merely substituting other terms that are equally unrefined, variable, subjective, and conclusory. Landry v. Traveler's Insurance Co., 458 S.W.2d 649, 651 (Tex.1970) ("arbitrary" or "unreasonable"); Johnson v. City of Richardson, 206 S.W.2d 98, 100 (Tex.Civ.App.1947, no writ) ("more than an error in judgment"); County School Trustees of Callahan County v. District Trustees, 192 S.W.2d 891, 898 (Tex.Civ.App.1946 writ ref'd n.r.e.) ("harsh and arbitrary"); Brazos River C. & Reclamation Dist. v. Harmon, 178 S.W.2d 281, 292-93 (Tex.Civ.App.1944, writ ref'd w.o.m) ("mere mistake" of judgment insufficient and it must be coupled with "the additional elements of arbitrariness, capriciousness, partiality, etc."); Bobbitt v. Gordon, 108 S.W.2d 234, 238 (Tex.Civ.App.1937, no writ) (not merely an "error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency"). These substitute expressions are really no more illuminating than the original expression if either is to serve as a basis for appellate decision in a particular case standing alone. Nevertheless, the reported decisions reveal that appellate courts too often attempt to do just that--applying to "the record as a whole" the original or substitute expression to divine ultimately whether the trial court's action in the particular case transgressed a standard of "sound judicial discretion." ³

This form of appellate review and decision has not been helpful to the parties who must frame their appellate contentions in reference to the appellate courts' earlier decisions about what constitutes an "abuse of discretion." It does not aid the appellate courts who struggle for consistency while applying a standard so amorphous that it means everything and nothing at the same time; nor the trial courts who must guide their conduct in future cases by what the appellate courts have said and decided in applying a standard that lacks any discernable content standing alone. The "abuse of discretion" standard represents nevertheless an essential and fundamental principle in the complex and delicate relationship between trial and appellate courts. It is susceptible of use in a way that is consistent with its importance, and to that we now turn.

In common usage, the word "discretion" signifies a power to choose among alternatives within legal bounds. This power is routinely given to government officials because government cannot be conducted without the exercise by someone of the power to choose with authority, that is to say, the power to determine, according to the official's best judgment, what alternative is best in the circumstances. The "discretion" contemplated by the "abuse of discretion" standard is similar in that it signifies the power legally committed to a trial court to choose among alternatives: whether to issue a temporary injunction, whether to set aside a default judgment, whether to sustain a pleader's special exception, and so forth. The standard is a review-limiting device that, within limits, immunizes from appellate revision the choice made by the trial court in a particular case. In a similar way, an administrative agency's choice in a contested case is protected from reversal on judicial review by the "abuse of discretion" standard set forth in Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 19(e)(6) (Supp.1986), where it is coupled with the analogous expressions "arbitrary or capricious" and "clearly unwarranted exercise of discretion." Needless to say, that a matter is committed to a trial judge's discretion is never a reason for his deciding to rule one way as opposed to another.

It is fundamental, however, that neither a trial court nor an administrator may exercise authoritatively a power that is not vested in him by law; nor may he exercise a vested power in a manner that is contrary to law or reason. This adherence to legal rules, principles, and criteria is illustrated by the following statement of the Supreme Court of Texas in reference to the discretion committed to a trial court to set aside or not a default judgment, pursuant to an equitable motion for new trial:

Naturally appellate courts will differ on the delicate question of whether trial courts have abused their discretion. While trial courts have some measure of discretion in the matter, as, in truth, they have in all cases governed by equitable principles, it is not an unbridled discretion to decide cases as they might deem proper, without reference to any guiding rule or principle.

Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Com.App.1939); see also, Missouri-Kansas-Texas Railroad Co. v. Bush, 310 S.W.2d 404 (Tex.Civ.App.1958, writ ref'd n.r.e.), cert. denied 358 U.S. 827, 79 S.Ct. 45, 3 L.Ed.2d 67 (1958). The "judicial discretion" contemplated in the standard is not "judicial impressionism," but rather a discretion exercised in accordance with legal rules, principles, and criteria. Brown v. Allen, 344 U.S. 443, 496, 73 S.Ct. 437, 440, 97 L.Ed. 469 (1953). Stated another way, "the trial court abuses its discretion when the law is misapplied to established facts...." State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex.1975) (emphasis added).

If the trial judge exercises a power of choice given him by law, and does so in a way that is lawful in every respect, he has of course committed no legal error; and, it may not in such a case be concluded that he "abused his discretion." His choice in the particular case is immune from appellate revision, even though the appellate court might not have...