Gerald D. Addington and William B. Schaeffer, Jr. v. Lynnda M. Addington--Appeal from 309th District Court of Harris County

Affirmed and Memorandum Opinion filed July 1, 2004

Affirmedand Memorandum Opinion filed July 1, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00340-CV

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GERALD D. ADDINGTON AND WILLIAM B. SCHAEFFER, JR., Appellants

V.

LYNNDA M. ADDINGTON, Appellee

On Appeal from the 309th District Court

Harris County, Texas

Trial Court Cause No. 02-05696

M E M O R A N D U M O P I N I O N

Appellants, Gerald D. Addington and William B. Schaeffer, Jr., appeal from the trial court=s award of attorneys= fees to Lynnda Addington after Gerald filed a nonsuit in his declaratory judgment action against her.[1] In three issues, appellants contend that the trial court erred in (1) failing to file findings of fact and conclusions of law, (2) assessing attorneys= fees against them, and (3) determining the amount of fees awarded. We affirm.

Background

The underlying dispute began in 1990 as a divorce proceeding between Gerald and Lynnda Addington. Schaeffer filed the current lawsuit on behalf of Gerald, seeking declaratory judgment regarding rights created under the divorce decree, as well as a temporary restraining order and temporary and permanent injunctions to prevent seizure and foreclosure of Gerald=s property. In her trial pleadings and appellate brief, Lynnda contends that Gerald=s lawsuit was an attempt to collaterally attack the results of a federal bankruptcy proceeding, in which she was awarded $300,000 based on the divorce decree. She further maintains that appellants failed to apprise the Texas state court of the bankruptcy proceedings.

The trial court initially granted the TRO. After Lynnda filed a motion to dismiss and dissolve the TRO and a motion for summary judgment, the TRO was lifted, and Gerald filed a nonsuit as to his claims. In its final order, the trial court awarded $5,525 in attorneys= fees to Lynnda, for the services of her two attorneys, to be paid both by Gerald and Schaeffer. The trial court based the award alternatively under section 37.009 of the Declaratory Judgments Act and as a sanction under Rule 13. Tex. Civ. Prac. & Rem. Code Ann. ' 37.009 (Vernon 1997); Tex. R. Civ. P. 13.[2]

Findings of Fact

In their first issue, appellants contend that the trial court erred in failing to file findings of fact and conclusions of law, and they request that this appeal be abated until the trial court so acts. The trial court entered its AFinal Order and Award of Attorneys= Fees@ on December 3, 2002. Appellants filed a combined motion to reconsider and motion for new trial on December 18, 2002, and subsequently filed an amended combined motion to reconsider and motion for new trial on March 13, 2003. On March 26, 2003, the trial court denied the amended motions. On April 4, 2003, appellants filed their request for findings of fact and conclusions of law.

In the request, appellants do not specify on which of the trial court=s orders they sought findings of fact and conclusions of law. In regard to the court=s AFinal Order and Award of Attorneys= Fees,@ which was effectively the final judgment, the request was untimely because it was not made within twenty days of the date the order was signed. See Tex. R. Civ. P. 296. The filing of the motions for new trial and for reconsideration did not toll the deadline for requesting findings of fact and conclusions of law regarding the final judgment. See Lute Riley Motors, Inc. v. T. C. Crist, Inc., 767 S.W.2d 439, 440 (Tex. App.CDallas 1988, writ denied).

Regarding the court=s order denying the amended motions, the rules do not require a court to issue findings of fact and conclusions of law after denial of a motion for new trial or for reconsideration. See Puri v. Mansukhani, 973 S.W.2d 701, 707-08 (Tex. App.CHouston [14th Dist.] 1998, no pet.). If an evidentiary hearing is undertaken, the court may make findings of fact and conclusions of law, but it is not mandatory for it to do so. Id. Here, appellants do not suggest, and the record does not reflect, that an evidentiary hearing took place on the amended motions. The trial court did not err in failing to make findings of fact and conclusions of law. See id. Accordingly, appellants= first issue is overruled.

Attorneys= Fees

In their second issue, appellants contend that the trial court erred in awarding attorneys= fees because (1) Lynnda=s answer did not include a request or counterclaim for attorneys= fees, (2) Gerald filed a motion for nonsuit before the trial court awarded the fees, and (3) in the absence of either a motion for sanctions or a hearing, there is no evidence on which the trial court could have determined that Gerald=s pleadings were sanctionable. As mentioned above, the trial court awarded attorneys= fees alternatively under section 37.009 of the Declaratory Judgments Act and as a Rule 13 sanction. We will examine this issue under Rule 13. We will not set aside a Rule 13 sanctions order unless a clear abuse of discretion is shown. Mattly v. Spiegel, Inc., 19 S.W.3d 890, 895 (Tex. App.CHouston [14th Dist.] 2000, no pet.).

Appellants first argue that Lynnda=s answer did not include a request or counterclaim for attorneys= fees. Appellants, however, cite to no authority requiring a request for sanctions to be included in a defendant=s answer. Generally, before sanctions may be imposed against a party or an attorney, he or she is entitled to notice of the procedural basis for the potential sanctions. Bradt v. Sebek, 14 S.W.3d 756, 763 (Tex. App.CHouston [1st Dist.] 2000, pet. denied); Hawkins v. Estate of Volkmann, 898 S.W.2d 334, 346 (Tex. App.CSan Antonio 1994, writ denied). Here, while Lynnda did not include a request for sanctions in her answer, she did file an AEmergency Motion to Dismiss and Dissolve Temporary Restraining Order With Request For Sanctions,@ which included a specific request that the court impose Rule 13 sanctions against Gerald and his attorney for filing frivolous pleadings. Appellants do not discuss this request in their brief, and there is nothing in the record to indicate that it was not a pending request at the time the court entered its order. Accordingly, sufficient pleadings were on file to support the sanctions award.

Appellants next argue that the trial court was without authority to impose sanctions after they filed a notice of nonsuit. Rule 162, governing dismissals and nonsuits, states: AAny dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief [, and shall] have no effect on any motion for sanctions, attorney=s fees or other costs, pending at the time of dismissal . . . .@ Tex. R. Civ. P. 162. Here, Lynnda=s request for sanctions was pending at the time the nonsuit was filed. Accordingly, the trial court had authority to impose sanctions despite the nonsuit. See Miller v. Armogida, 877 S.W.2d 361, 364 (Tex. App.CHouston [1st Dist.] 1994, writ. denied).[3]

Lastly under this issue, appellants contend that, absent either a motion for sanctions or a hearing, there was no evidence presented on which the trial court could have determined that appellants= pleadings were sanctionable. As discussed above, the record reflects that a request for sanctions was on file when the trial court entered its order; thus, the first part of appellants= argument is based on an erroneous premise. Regarding the hearing, appellee states in her brief that there was an unrecorded hearing on October 4, 2002. Indeed, the record contains the hearing notice and several other documents referencing a hearing set on that date, including the court=s order, wherein it states: AOn the 4th day of October, 2002, came on to be heard Defendant Lynnda M. Addington=s Motion for Summary Judgment or Dismissal . . . seeking relief in the form of sanctions . . . .@[4] Thus, the record supports the conclusion that a hearing took place regarding sanctions.[5]

Furthermore, appellants= argument in the trial court was not that there was no hearing but that there was no evidentiary hearing. In Gene Duke Builders, Inc. v. Abilene Housing Authority, 47 Tex. Sup. Ct. J. 345, 2004 WL 422592 (Tex. March 5, 2004) (per curiam), the Texas Supreme Court held that a hearing was evidentiary in nature, even though there was no formal offer of evidence, because the court considered a deposition, affidavits, and exhibits attached to pleadings. Id. at *1. Here, Lynnda=s request for sanctions and her motion for summary judgment, which were on file at the time of the hearing, both had numerous documents attached relating to prior proceedings between the parties.[6] Lynnda argued in her request for sanctions that Gerald=s petition was frivolous because it improperly sought to circumvent the bankruptcy court proceedings and did not disclose those proceedings to the Texas court. Because the October 4 hearing was not recorded, we cannot know whether the documents were formally admitted into evidence. Regardless, whether the documents were admitted or the court judicially noticed them, it is clear that there was some evidence before the court regarding the Rule 13 sanctions allegations. Thus, appellants= last argument under this issue, that there was no evidence presented regarding sanctions, is without merit.[7]

In sum, appellants have failed to show the trial court abused its discretion in awarding attorneys= fees as sanctions under Rule 13. See Mattly, 19 S.W.3d at 895. Accordingly, their second issue is overruled.

Amount of Award

In their third issue, appellants contend that the trial court abused its discretion in determining the amount of fees because (1) the affidavit supporting the motion for sanctions did not itemize the amount billed for each particular work item nor did it say who performed each item, and (2) the amount of work required by the case did not justify the amounts awarded. Regarding the first argument, that the work was not itemized, appellants cite no authority suggesting that itemization is required in support of a request for attorney=s fees. See generally Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (listing factors to be considered in determining the reasonableness of attorney=s fees). Generally, fees do not have to be itemized absent a need to segregate fees incurred for work on different clients or claims. See Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 898 (Tex. App.CDallas 2003, no pet.). Here, appellants do not claim that there was any identifiable need for segregation between clients or claims. Further, contrary to appellants= allegation that the affidavit does not specify which attorney worked on each item, the affidavit does in fact state the work items performed by each attorney.[8]

Lastly, regarding the contention that the amount of work did not justify the amounts awarded, Lynnda presented the court with an affidavit from one of her attorneys in which he detailed the work that was done in the case, the hours required, the billing rates, and the total fees charged by each attorney. The affiant further stated he had been a licensed attorney in Texas since 1978 and was familiar with legal fees in Houston and Texas for such representation and that the amounts listed were reasonable and necessary for the services rendered. The affidavit is clear, positive, direct, and was not controverted by any other evidence or the circumstances of the case. Accordingly, appellants have no basis on which to challenge the reasonableness of the fees on appeal. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990); Schwartz v. Pinnacle Communications, 944 S.W.2d 427, 434-35 (Tex. App.CHouston [14th Dist.] 1997, no writ). Appellants= third issue is overruled.

The trial court=s judgment is affirmed.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed July 1, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

[1] Schaeffer is the attorney who represented Gerald in the trial court.

[2] In its order, the trial court specified section 37.009 but did not specify the authority under which it imposed sanctions; however, in their briefs, both parties agree that the sanctions were imposed under Rule 13.

[3] Appellants cite Mainland Savings Association v. Wilson, 545 S.W.2d 491 (Tex. App.CHouston [1st Dist.] 1976, no writ), for the proposition that if a nonsuit is filed before the court announces its decision, no action could be taken on a request for sanctions. In that case, the appellate court held only that the trial court erred in ruling on the merits of the plaintiff=s underlying claims after the plaintiff filed a nonsuit. Id. at 493. The case did not involve a request for sanctions. Thus, it is does not support the proposition for which appellants cite it. Additionally, this case was decided before language was added to the rule to expressly state that there is no effect on a pending motion for sanctions.

[4] The AMotion for Summary Judgment or to Dismiss or to Abstain@ did not specifically request Rule 13 sanctions, but it did (1) request attorneys= fees, (2) allege Gerald=s petition was frivolous, and (3) reference the prior motion to dismiss and request for Rule 13 sanctions.

[5] We generally presume that missing portions of a record support the trial court=s judgment. City of Brenham v. Honerkamp, 950 S.W.2d 760, 774 (Tex. App.CAustin 1997, writ denied).

[6] The attached documents included the original divorce decree, the bankruptcy court judgment, the bankruptcy settlement agreement, the bankruptcy court=s order of sale, the order of the United States District Court affirming the bankruptcy court=s decision, the judgment and mandate of the Fifth Circuit Court of Appeals dismissing the appeal, and an affidavit by one of Lynnda=s attorneys.

[7] Appellants make no specific arguments regarding the sufficiency of the evidence to support the sanctions award.

[8] It is true that the same proceedings and documents were listed for each of Lynnda=s attorneys, but clearly more than one attorney can attend a proceeding or prepare a pleading.