AIRPORT SKATELAND, INC.,FROM A DISTRICT COURT APPELLANT, v. DOLORES H. SIMS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-87-01020-CV
 
AIRPORT SKATELAND, INC.,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
DOLORES H. SIMS,
 
        APPELLEE.OF COLLIN COUNTY, TEXAS
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES HOWELL AND THOMAS
DISSENTING OPINION BY JUSTICE HOWELL
MARCH 7, 1989
 
        I dissent from the majority's affirmance of the trial court's award of attorney's fees on appeal even though the jury decided to deny the recovery thereof.
        The amount of a reasonable attorney's fee is a fact issue and must be submitted to a jury unless the parties agree to the contrary. Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155, 160 (1945) (trial court erred in fixing attorney's fee on basis of evidence that was assertedly "without dispute"; jury must fix reasonable amount); Brownlee v. Sexton, 703 S.W.2d 797, 802 (Tex. App.--Dallas 1986, writ ref'd n.r.e.).
        The majority does not disagree. Instead, the majority takes the opinion that, using the vernacular, appellant, through its counsel, has "testified itself out of court." Although not worded in terms of an admission, the majority takes the position that counsel for appellant, through his own testimony, made a binding admission that the appellate fees claimed by opposing counsel were reasonable. In the opinion of this writer, no direct and unequivocal admission was made. Inasmuch as the purported admission was not direct and unequivocal, the question of whether counsel was admitting the reasonableness of his opponent's fee claim was a fact issue for determination by the finder of fact. This is the teaching from the majority's case of Tarleton State Univ. v. K.A. Sparks Contractor, Inc., 695 S.W.2d 362, 267 (Tex. App.--Waco 1987, writ ref'd n.r.e.). In addition, by rejecting the attorney's fee claim of appellee's counsel, the jury necessarily rejected any contention that counsel for appellant had admitted the reasonableness of his opponents attorney's fee claim. At a minimum, whether the statement made constituted an admission has not been resolved by the finder of fact.
        The relevant evidence is referred to by the majority but has not been adequately developed for an understanding of the problem. Both parties in this case were claiming attorney's fees. Counsel for appellee gave his own testimony in support of his attorney's fee claim before counsel for appellant was heard. As a part of his testimony, appellee's counsel gave his opinion of a reasonable amount to be charged to his client for the defense of an appeal.
        Thereafter, counsel for appellant testified, not with respect to his opponent's attorney's fee claim but in support of his own claim, testifying in part as follows:
    Q. Now as far as in the event that [appellant] is dissatisfied with the verdict and takes an appeal, would you have an opinion on the reasonable attorney fees for handling this case on appeal for [appellant].
 
    A. I do.
 
    Q. And what is your opinion?
 
    A. I wouldn't disagree with . . . [appellee's counsel's] testimony. I think if you have done most of your research, that $5,000.00 is probably pretty high, but I would say that it is in the ball game for an appeal to the Court of Civil Appeals.
 
    Q. And how about to the Supreme Court of Texas. What is your opinion as far as a reasonable fee for handling a successful handling of a case on appeal in the Supreme Court of Texas?
 
    A. I go along with [appellee's counsel] on his testimony on the Supreme Court of Texas. I would say generally the Supreme Court of Texas is not an easy place to get the door open to. That I have been there, and I have won some cases there, and I have lost some cases there. But it is not easy to get to the Supreme Court.
 
    Q. And so what is your opinion as far as charges?
 
    A. $3500.00, I believe, is what [appellee's counsel] testified to, and I would not disagree with that.
        In order to determine if a direct and unequivocal admission was made, the remarks must be placed in context. Appellant's counsel was referring to his own fee claim, not the fee claim of his opponent. His essential message was "that a reasonable fee for my services for defending my client before the Court of Civil Appeals would be $5,000 and a reasonable fee for my services in representing my client before the Supreme Court would be $3,500."
        It is to be emphasized that counsel was not testifying to the reasonableness of his opponent's fee; he was testifying to the reasonableness of his own fee. From the manner in which he spoke, it was certainly possible for the trier of fact, if it had chosen to do so, to infer that a similar amount would be a reasonable fee for opposing counsel if opposing counsel were called to defend the case on appeal. However, appellant's counsel made no direct and unequivocal admission to this effect. Beyond doubt, he made remarks from which such a conclusion might reasonably have been inferred. However, the majority has lost sight that the only entity constitutionally authorized to strike the inference was the trier of fact. Where a jury has been impaneled, it is the function of the jury, not the judge to strike inferences. Likewise, it is not the function of an appellate court to strike inferences.
        Of course, a direct and unequivocal admission is binding upon a litigant. Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 381 (1956). See also Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980); Watts v. St. Mary's Hall, Inc., 662 S.W.2d 55, 59 (Tex. App.--San Antonio 1983, writ ref'd n.r.e.). Cf. TEX. R. CIV. EVID. 801(e)(2)(D). A direct and unequivocal admission entered into by counsel in the course of his representation of his client, is as binding upon the client as is the client's own admission. FN:1 TEX. R. CIV. EVID. 801(e)(2)(D). Likewise, it cannot be disputed that once a direct and unequivocal admission has been made, no fact issue remains for determination by the jury. Texas Processed Plastics Inc. v. Gray Enter., Inc., 592 S.W.2d 412, 415 (Tex. Civ. App.--Tyler 1979, no writ). A jury verdict contrary to any such direct and unequivocal admission may be disregarded. Cf. Valdes v. Moore, 476 S.W.2d 936, 939-40 (Tex. Civ. App.--Houston [1st Dist.] 1972, writ ref'd n.r.e.) (summary judgment must be affirmed if statement was judicial admission because no fact issue for jury would remain). However, for the reasons just stated, those well recognized principles do not govern the case at hand.
        It is elementary that the judge of a trial court cannot decide disputed fact issues in a jury-demanded case. See Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 360 (1962). Disputed questions concerning value and amount of damages may never be held uncontroverted simply because the opposing party does not present evidence of his own as to the amount of damages. A jury always possesses discretion to discount testimony as to value and amount of damages. Country Roads, Inc. v. Witt, 737 S.W.2d 362, 365 (Tex. App.--Houston [14th Dist.] 1987, no writ); Del Carmen Alarcon v. Circe, 704 S.W.2d 520, 521 (Tex. App.--Corpus Christi 1986, no writ); Farmers & Merchants State Bank of Krum v. Ferguson, 605 S.W.2d 320, 327 (Tex. Civ. App.--Fort Worth 1980), modified, 617 S.W.2d 918 (Tex. 1981). This is particularly true when such testimony emanates from an interested party. Washington v. Reliable Life Ins. Co., 581 S.W.2d 153, 159 (Tex. 1979); Collora v. Navarro, 574 S.W.2d 65, 69 (Tex. 1978); Equitable Trust Co. v. Roland, 721 S.W.2d 530, 533 (Tex. App.--Corpus Christi 1986, writ ref'd n.r.e.). See also Tarleton, 695 S.W.2d at 367. Obviously, an attorney is an interested party when testifying as to his own fee. Rarely, if ever, can his opinion as to the reasonableness of his own fee be held conclusive. Tarleton, 695 S.W.2d at 367; Reynolds Research & Mfg. Co. v. Scamardo, 412 S.W.2d 941, 943 (Tex. Civ. App.--Waco 1967, no writ) (citing Great American Reserve Ins. Co. v. Britton, 406 S.W.2d 901, 907 (Tex. 1966)).
        The most relief that this court could give would be to order a new trial before another jury upon the claim of appellee for attorney's fees on appeal. See Great American Reserve Ins. Co. v. Britton, 406 S.W.2d 901, 907 (Tex. 1966) (reasonableness of attorney's fees is a jury question); Trevino v. American Nat'l Ins. Co., 140 Tex. 500, 168 S.W.2d 656, 660 (1943) (appellate court, holding that attorney's fee recovery was erroneously denied, may not issue attorney's fee judgment on basis of apparently "uncontroverted" testimony; that issue must be remanded for trial by jury).
        The closest case on its facts is the majority's case, Coffey v. Young, 704 S.W.2d 591, 595 (Tex. App.--Fort Worth 1986, no writ). In an action for breach of contract and other relief, the jury found for the plaintiffs on the underlying dispute and gave an award for attorney's fees in the trial court. However, it answered "none" with respect to fees on appeal. Held: the award of "none" was so contrary to the weight and preponderance of the evidence as to be manifestly unjust; a remand for new trial was ordered. Coffey, with an exception to be mentioned momentarily, is consonant with the decisions of the Supreme Court and the better reasoned decisions of our courts of appeals. We must hold the trial court below erred in adding appellate attorney's fees to the judgment after the jury declared that none were due.
        We should, however, go beyond Coffey for the reason that the negative verdict here in issue related to an attorney's fee claim which brings special considerations into play, a factor that was entirely overlooked by Coffey and of which our majority has chosen not to take notice. Although it is lawful for a layman to represent himself in court, the facts are that few are able to do so. The services of an attorney are, as a practical matter, the virtually exclusive avenue through which a litigant may gain access to the courts. For this reason, attorneys' fees have always been held subject to special rules and special scrutiny. See, e.g., Tenneco Oil v. Padre Drilling Co., 453 S.W.2d 814, 818 (Tex. 1970).
        The right of a litigant to appeal his case is an important right, possibly a constitutional one. See TEX. CONST. art. 5, § 6 (Vernon Supp. 1989). See also Outlaw v. Gulf Oil Corp., 137 S.W.2d 787, 796 (Tex. Civ. App.--El Paso 1940) (on reh'g), rev'd on other grounds, 136 Tex. 281, 150 S.W.2d 777 (1941) (cited in Staehling v. Schneider, 545 S.W.2d 273, 273 (Tex. Civ. App.--Houston [1st Dist.] 1976, no writ)). Whenever a trial court tells the losing party that if he chooses to appeal an adverse ruling just handed to him, then he must pay the opposite party's attorney, as well as his own attorney, that court has cast a heavy burden on the right of appeal.
        If we credit this jury with a modicum of common sense, we must credit the jury with knowledge that appellee would be required to pay some amount to her attorney, in case of an appeal. Repeating: the jury may or may not have considered the attorney's fee testimony excessive, but it did not reduce the award. It eliminated the award; the jury denied recovery even though it must have known that something would have to be paid.
        Why did the jury deny appellate attorney's fees outright when it knew that something would have to be paid? The only conceivable reason is that the jury considered that appellant should be allowed to prosecute his appeal free from the chilling effect of being required to pay an attorney's fee to the opposing party. Considering the special and sensitive nature of an attorney's fee award, considering the nature of the right to be protected, we should hold that the jury, in its discretion, had the right to deny the recovery of appellate attorney's fees altogether.
        Tarleton stands as authority for the complete denial of attorney's fees when the jury finds that they should be denied. 695 S.W.2d at 367. Although Tarleton did not explicate its reasoning for the complete denial of attorney's fees, the reasoning given above supports the result in Tarleton and commands a like result in the case before us. Coffey and Tarleton do not necessarily conflict. In Coffey, the appellate court reversed and remanded the basic claim; it only made sense to also remand the attorney's fee claim. As a matter of fact, it is hard to conceive a situation where it would be proper to remand the basic dispute for new trial and leave the attorney's fee award intact. If there is a conflict between these authorities upon the question of the proper disposition of an attorney's fee award after holding that reversal should be had, Tarleton is the better authority and should be followed.
        I dissent upon the issue of appellate attorney's fees. The judgment should be modified by deleting the trial judge's award of attorney's fees on appeal. At a minimum, we must remand this claim for trial before another jury.
 
                                                  
                                                  CHARLES BEN HOWELL
                                                  JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
87-01020.DF
 
FN:1 The majority has spoken of the testimony of appellant's attorney as "corroborating testimony"; such terminology is not proper. If appellee had called a third party witness, he might have corroborated the testimony of appellee's counsel. However, the opposing party and his privies either admit or deny the claims made by his opponent. Strictly speaking, he never corroborates.
File Date[01-02-89]
File Name[871020]