McFadden v. Bresler Malls, Inc.

• Decision Date: 23 July 1975
• Docket Number: No. 12251,12251
• Citation: 526 S.W.2d 258
• Parties: Auburn T. McFADDEN, Jr., et ux., Appellants, v. BRESLER MALLS, INC., Appellee.
• Court: Texas Court of Appeals

Page 258

526 S.W.2d 258

Auburn T. McFADDEN, Jr., et ux., Appellants, v. BRESLER MALLS, INC., Appellee.

No. 12251.

Court of Civil Appeals of Texas Austin.

July 23, 1975.

Rehearing Denied Aug. 13, 1975.

Barry K. Bishop, Donald Scott Thomas, Jr., Clark, Thomas, Denius, Winters & Shapiro, Austin, for appellants.

J. Manuel Hoppenstein, Hoppenstein & Prager, Dallas, Gerard P. Nugent, Austin, for appellee.

O'QUINN, Justice.

This appeal is from judgment of a county court at law, in a suit of forcible entry and detainer, awarding $5,414.91 as attorney's fees and expenses appellee sought as 'necessary and reasonable' in prosecuting a cause for recovery of $3,837.92 which represented the agreed fair market value of the premises for a period of less than four and one-half months.

Bresler Malls, Inc., appellee, brought suit against appellants, Auburn T. McFadden and wife, by notice of appeal against a judgment rendered in justice court denying to plaintiff its writ of forcible entry and detainer and writ of restitution. In the county court at law Bresler Malls alleged that the reasonable rental value of the premises held by the McFaddens was $900 per month for the months of May through September of 1974, or a minimum of $4,500, and in addition sought reasonable attorney's fees and expenses in prosecuting the suit, 'in accordance with Rule 752 of the Texas Rules of Civil Procedure.'

Appellants, as defendants below, in answering plaintiff's petition recognized their obligation to make specified monthly rental payments, and the record shows that appellants continued such payments to the month of trial. The parties stipulated in trial court, at the outset of the proceedings, that a 'fair market value for the premises for the period of time in question' would be $882.38 per month, a total amount of $3,837.82 to the date of trial. The sum finally awarded Bresler Malls was $3,837.92, or ten cents more than the amount stipulated. The stipulation further recited that the total rent 'reflects checks for the past months for the rent that have (has) been tendered to the Plaintiff by the Defendant(s).'

The premises involved consisted of store space in Highland Mall, in the city of Austin, to be used by the McFaddens 'solely as a Bresler's 33 Flavors Ice Cream Shop selling handpacked and dipped ice cream, soda fountain products and Other related ice cream specialty items and no other products whatsoever without prior consent of Landlord in writing.' (Emphasis added) Sale by the McFaddens of popcorn, coffee, and sandwiches without prior permission was a basis for Bresler Malls' contention that the tenants had breached the lease agreement.

After the stipulations, the only issue before the trial court was the question of possession of the premises, dependent upon whether the lease contract between the parties had been breached, and the collateral issue of reasonable attorney's fees and expenses to be awarded the prevailing party under Rule 752. The trial court decided the issue of breach of the lease contract against appellants and awarded to Bresler Malls 'damages in the sum of . . . (3,837.92) being the reasonable rental value of said premises from May 1, 1974 until the date of trial.'

In addition to award of the rents, which appellants stipulated were due and had tendered each month prior to trial, the trial court awarded Bresler Malls the sum of $5,414.91 'as reasonable attorneys (sic) fees and expenses incurred in prosecuting this appeal, and for costs of court.'

Appellants bring the single point of error that 'There is insufficient evidence to support the award of attorney's fees . . . and the fees awarded are grossly excessive and contrary to the great weight and preponderance of the evidence.'

We will sustain the point of error and reverse the judgment of the trial court.

Appellee presents two counterpoints on appeal, the first of which we deem it appropriate to dispose of now. The first point challenges appellants' right 'to raise the issue of reasonable attorney's fees for the first time on appeal.'

Appellee argues that after submitting 'its evidence as to reasonable attorney's fees, Appellants neither offered any evidence to the contrary nor did they even dispute Appellee's evidence. The issue was never presented to the trial court and the Appellants should not now be allowed to litigate it for the first time on appeal.'

Appellants raised the issue of attorney's fees by general denial and by an explicit affirmative defense denying 'that Plaintiff is entitled to any recovery of damages or attorney's fees.' Appellants also sought affirmative relief by suing 'to recover all necessary and reasonable expenses, including a reasonable attorney's fee, incurred in defending this suit in county court.'

If appellants believed at the trial that appellee had failed to offer sufficient evidence to support recovery of attorney's fees, or that the evidence offered was so incomplete as to constitute no evidence, their failure to offer rebuttal testimony did not amount to a waiver of the issue, nor did their action amount to an admission that appellee had discharged its burden of proof.

In its contention that the issue of attorney's fees may not be raised for the first time on appeal appellee relies on decisions in cases in which appellate courts declined to consider issues which had not been pleaded in the trial court. Those cases are not in point. State of California Department of Mental Hygiene v. Bank of the Southwest National Association, 163 Tex. 314, 354 S.W.2d 576, 581 (1962); Ayoub v. Herold, 287 S.W.2d 539, 544 (Tex.Civ.App. El Paso 1955, writ ref. n.r.e.); Yelverton v. Brown, 412 S.W.2d 325, 328--29 (Tex.Civ.App. Tyler 1967, no writ); Arnold v. Crockett Independent School District, 389 S.W.2d 608, 609 (Tex.Civ.App. Tyler 1965, affmd. in part, rev. and remd. in part, Tex., 404 S.W.2d 27), citing Victory v. State, 134 S.W.2d 477, 481 (Tex.Civ.App.1939, affmd. 138 Tex. 285, 158 S.W.2d 760, 766).

If appellee's position is that appellants, in order to raise the issue on appeal, should have filed a motion for new trial, calling the trial court's attention to the error later complained of on appeal, that position too is untenable. Under their pleadings appellants, both by general denial and affirmative defense, put appellee in a position of having to prove every material fact of its cause of action, and since the trial was before the court without a jury, motion for new trial was not required to preserve error on appeal. Rule 324, Texas Rules of Civil Procedure. Boswell v. Handley, 397 S.W.2d 213, 217 (Tex.Sup.1965).

Appellee's second point is counter to the issue presented in this appeal by appellants, and will be considered in disposing of that question.

The only evidence heard by the trial court on the question of attorney's fees were certain stipulations, in summary, as follow:

(1) If called to the stand, Gerry Nugent, one of the attorneys for appellee, would testify that he spent less than one hour 'familiarizing himself with the file,' and spent 27 hours in research, preparation, and trial of the case, his hourly rate being $50.

(2) If called, J. Manuel Hoppenstein, also attorney for appellee, would testify he spent 60 hours in research, preparation, and trial, and that his usual charge is $60 per hour. In addition, Hoppenstein indicated that for travel, telephone expense, and court costs advanced, he had spent $459.16.

(3) Charles Babb, not of counsel, if called would testify that charges of $50 or $60 an hour are reasonable.

(4) If called, Donald Scott Thomas, Jr., counsel for appellants, would testify that he spent 11 hours in preparation of the case and two days in trial, at an hourly rate of $40 . Thomas further would offer the minimum fee schedule of the State Bar of Texas on trial of civil cases in county court which specifies minimum fees of $35 for perfecting appeal from justice court, $50 for preparation, and $75 per day for court appearances. Thomas further would testify that for representing appellants a total charge of $200 would be a reasonable fee.

Appellants have not contested expenses of $459.16 stipulated by Hopppenstein. The question remaining is whether attorney's fees, amounting to nearly $5,000, were shown to be necessary and reasonable under the evidence adduced.

Appellants' position is that the court's judgment awarding the sum of $5,414.91 for attorney's fees and expenses 'cannot be maintained as 'necessary and reasonable' under Rule 752, Texas Rules of Civil Procedure.' Rule 752 specifies damages which appellant or appellee, on the trial of a forcible entry and detainer proceeding in county court, may plead and prove: (1) Damages 'suffered for withholding or defending possession of the premises during the pendancy of the appeal and (2) also all Necessary and reasonable expenses incurred in prosecuting or defending the cause in the county court . . .' (Emphasis added)

Damages awarded for withholding the premises are not at issue on appeal and were, as indicated earlier, stipulated by the parties. The sole issue is whether attorney's fees, included by the trial court in 'necessary and reasonable expenses incurred in prosecuting the cause' were shown by appellee to be necessary and reasonable. Appellants contend also that the attorney's fees awarded by the trial court were 'grossly in excess of the State Bar of Texas Minimum Fee Schedule, which, one supposes, were based in large part upon the number of hours which would be reasonably expected to be necessary.'

Preliminary to meeting the issue of sufficiency of the evidence to support the judgment for attorney's fees, appellee contends, first, that even in the absence of any evidence, the trial court could have awarded attorney's fees; and second, that since findings of fact and conclusions of law were not filed, the appellate court 'must presume that the trial court found facts in a manner to support its judgment .'

Under the...