Commissioners Court of Dallas County v. Buster, Edwina--Appeal from 160th District Court of Dallas County

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

 
COMMISSIONERS COURT OF DALLAS COUNTY,

Appellant,

 

v.

 

EDWINA BUSTER,

 

Appellee.

 

 

 

 

No. 08-02-00048-CV

 

Appeal from the

 

160th Judicial District Court

 

of Dallas County, Texas

 

(TC# DV00-04531-H)

MEMORANDUM OPINION

Dallas County Commissioners Court appeals from the judgment in the trial court that Edwina Buster, the Appellee, recover her full salary of $65,486.83 from the date of her termination from the Dallas County Sheriff's Department until the end of the sheriff's term on December 31, 2000, as well as attorney's fees of $21,807.11. Dallas County Commissioners Court presents three issues: (1) John Weddle violated the Tex. Disciplinary R. Prof'l Conduct 1.10(a) by representing Appellee, a private client, without its consent, in connection with a matter in which he participated personally and substantially as a public officer or employee; (2) John Weddle violated the conflict of interest provisions of the Tex. Disciplinary R. Prof'l Conduct 1.09(a)(3) by representing Appellee in a matter adverse to it, his former client; and (3) there is no evidence or insufficient evidence to support the trial court's award of attorney's fees since the Appellee never proved the reasonableness or necessity of those fees.

Commissioners Court asserts in the first two issues that Appellee's attorney, John Weddle, was violating Rules 1.10(a) and 1.09(a)(3) of the Texas Disciplinary Rules of Professional Conduct. It is undisputed that John Weddle, Appellee's attorney, had participated actively in Appellee's case while an Assistant District Attorney for Dallas County and that Commissioners Court had not consented to his representing her in this litigation. While Commissioners Court does not specifically urge any error on the part of the trial court with respect to these matters, we interpret the first two issues as contending that the trial court erred in overruling its motion to disqualify John Weddle.

Despite the fact that John Weddle had represented Appellee in this matter since she first filed a formal grievance with the Sheriff's Civil Service Department on March 27, 1998, Commissioners Court's motion to disqualify John Weddle was filed less than 30 days prior to trial, on July 10, 2001. A party who fails to file its motion to disqualify opposing counsel in a timely manner waives the complaint. See Turner v. Turner, 385 S.W.2d 230, 236 (Tex. 1964) (overruled on other grounds in Bounds v. Caudle, 560 S.W.2d 925 (Tex. 1977)). We hold the trial court could reasonably have determined that Commissioners Court did not file its motion to disqualify in a timely manner and therefore did not abuse its discretion in overruling Commissioners Court's motion to disqualify John Weddle.

At oral submission, Commissioners Court urged that it did not become aware of a document putting it on notice of the problem until shortly before it filed its motion to disqualify. We find nothing in the record to support its assertion or to show that the matter was presented to the trial court in connection with the motion to disqualify. We overrule issues number one and two.

Commissioners Court contends in issue number three that there is no evidence or factually insufficient evidence to support the trial court's award of attorney's fees because Appellee never proved the reasonableness or necessity of those fees.

In determining a "no-evidence" issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences that tend to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1952). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).

A "no-evidence" issue may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or in evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). There is some evidence when the proof supplies a reasonable basis on which reasonable minds may reach different conclusions about the existence of the vital fact. Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992).

An assertion that the evidence is "insufficient" to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). We are required to consider all of the evidence in the case in making this determination. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998).

Appellee testified that she incurred attorney's fees in bringing her suit. She indicated that she agreed to a contingent fee that would be in the amount of $21,807.11 if the judge awarded her $65,486.83. She requested the court to award her these attorney's fees. She stated that her attorney was due that amount based on his hard work. She acknowledged that she is not and has never been an attorney or worked with an attorney billing people with respect to cases like her own. Evidence of the contingent fee, taken by itself, does not constitute sufficient evidence to support an award of attorney's fees in a D.T.P.A. case. See Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818-19 (Tex. 1997). We see no reason why that rule would be any different in a declaratory judgment case. However, in this case, where the issue was tried before the court, the trial court may take judicial notice with respect to the reasonableness and necessity of Appellee's attorney's fees. See Purvis Oil Corp. v. Hillin, 890 S.W.2d 931, 939 (Tex. App.--El Paso 1994, no writ); Armstrong v. Steppes Apts. Ltd., 57 S.W.3d 37, 50 (Tex. App.--Fort Worth 2001), cert. denied, 536 U.S. 951, 122 S. Ct. 2645, 153 L. Ed. 2d 823 (2002). We hold that the evidence is sufficient to support the trial court's award of attorney's fees.

Commissioners Court primarily relies upon the case of Geochem Tech. Corp. v. Verseckes, 929 S.W.2d 85, 92-93 (Tex. App.--Eastland 1996), reversed on other grounds, 962 S.W.2d 541 (Tex. 1998), which holds that the trial court cannot take judicial notice as to the reasonableness and necessity of attorney's fees in declaratory judgment actions. We respectfully choose to follow the established precedent of this Court to the contrary. We overrule issue number three.

The judgment is affirmed.

November 25, 2003

 

JOHN HILL, Chief Justice (Ret.)

 

Before Panel No. 5

Hill, C.J. (Ret.), McClure, and Chew, JJ.