Rebecca Tejeda v. Adolph G. Garcia and Harlandale Independent School District--Appeal from 45th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00263-CV
Rebecca TEJEDA,
Appellant
v.
Adolph G. GARCIA and Harlandale Independent School District,
Appellees
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-05610
Honorable Michael P. Peden, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: August 6, 2003

AFFIRMED

Rebecca Tejeda appeals from the trial court's judgment ordering Adolph G. Garcia to pay her attorney's fees. On appeal, Tejeda argues that the trial court should have also ordered Harlandale Independent School District to pay her attorney's fees and that the trial court's award of attorney's fees is too low and not in conformity with the evidence. We overrule both issues and affirm the judgment of the trial court. (1)

Background

Harlandale Independent School District ("Harlandale") installs members of its Board of Trustees by single-member district elections. Adolph G. Garcia was the incumbent trustee for District Seven and was up for re-election in May of 2001. Although Garcia was an incumbent trustee for District Seven, he moved out of District Seven on or about November 10, 2000.

Rebecca Tejeda and her husband, Ruben, are both residents of District Seven and were supporters of Garcia's opponent, Doroteo Montelongo. On March 19, 2001, Rebecca and Ruben attended a meeting of the Board of Trustees, intending to speak during the "citizens to be heard" portion of the open meeting. Both Rebecca and Ruben wanted to give the board their opinion about a petition to rename one of the schools. While speaking to the board, Rebecca and Ruben accused Garcia of no longer being a resident of District Seven and suggested that he resign. Whether Garcia was a resident of District Seven was not an issue at the meeting.

The next day, March 20th, Garcia filed as a candidate for District Seven. In doing so, he represented to Harlandale under oath that he was a resident of District Seven. Harlandale did not take any action against Garcia. Rebecca then filed a declaratory judgment action against Garcia and Harlandale, seeking to enjoin Garcia from further serving as trustee and to declare him ineligible to run in the upcoming May election.

On May 1, 2001, the trial court declared that Garcia no longer lived in District Seven and had, as such, vacated his position as trustee. The court temporarily enjoined Garcia from continuing to serve and enjoined Harlandale from allowing him to remain on the board. Additionally, because Garcia had not resided in District Seven for the six-month period immediately preceding the election, the trial court declared him ineligible as a candidate in the May election. Further, the order enjoined Harlandale from installing Garcia as trustee for District Seven if he received the majority of the votes in the election. Ruben distributed news of the temporary injunction as campaign material for Montelongo. Montelongo won the election.

In October of 2001, Rebecca moved for $10,000 in attorney's fees, and Harlandale moved to dismiss the case as moot due to the election results. After an evidentiary hearing, the trial court found that the case was moot and ordered Garcia to pay Rebecca $5,000 in attorney's fees. The trial court, however, did not order Harlandale to pay any of Rebecca's attorney's fees.

Standard of Review

The Texas Uniform Declaratory Judgment Act provides that "the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Tex. Civ. Prac. & Rem. Code Ann. 37.009 (Vernon 1997). The Act does not require an award of attorney's fees to the prevailing party. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). Instead, it affords the trial court a measure of discretion in deciding whether to award attorney's fees. Id. There are, however, limitations to this discretion: (1) any award of attorney's fees must be reasonable and necessary, and (2) any award of attorney's fees or lack thereof must be equitable and just. Id. at 21. Thus, the trial court may award reasonable and necessary attorney's fees to a nonprevailing party as long as the award is equitable and just. Id.; Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996); State Farm Lloyds v. Borum, 53 S.W.3d 877, 894 (Tex. App.--Dallas 2001, pet. denied). Conversely, the trial court may conclude it is not equitable or just to award reasonable and necessary attorney's fees to the prevailing party. Boquet, 972 S.W.2d at 21; Barshop, 925 S.W.2d at 637; Borum, 53 S.W.3d at 894. In reviewing a trial court's decision to not award fees, we must examine whether the complaining party established not only that the fees sought were reasonable and necessary, but also that the award was equitable and just. Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 762-63 (Tex. App.--El Paso 2000, no pet.).

When deciding whether to award attorney's fees, the trial court must resolve both questions of fact (whether the fees sought are reasonable and necessary), as well as questions of law (whether an award of fees is equitable and just). Bocquet, 972 S.W.2d at 21; In re K.T., 107 S.W.3d 65, 73 (Tex. App.--San Antonio 2003, no pet.). Therefore, the trial court's determination to award attorney's fees or to not award attorney's fees is subject to an abuse of discretion standard. Bocquet, 972 S.W.2d at 21. However, whether the attorney's fees are reasonable and necessary is subject to sufficiency review. Id.

Whether to Award Attorney's Fees

In her first issue, Rebecca argues that the trial court abused its discretion by only ordering Garcia to pay her attorney's fees because Harlandale was placed on notice of Garcia's residency problem. Specifically, Rebecca emphasizes that at the open meeting on March 19, 2001, she and her husband, Ruben, accused Garcia of not being a resident of District Seven. According to Rebecca, once Harlandale was placed on notice of potential election improprieties, it should have investigated and remedied those improprieties. And, because Harlandale failed to act, Rebecca was forced to file the declaratory judgment action.

Although Rebecca and Ruben did accuse Garcia of not being a resident of District Seven, the substance of the open meeting concerned the renaming of one of the schools. Garcia's residency was not an issue on the agenda for the meeting. Moreover, the day after the Tejedas' accusation, Garcia filed a sworn document with Harlandale, stating that he was a resident of District Seven. (2) On one hand, Harlandale was aware of a passing remark by two of its residents, Rebecca and Ruben. On the other hand, Harlandale had in its possession a sworn document stating that Garcia was, indeed, a resident of District Seven. Given these facts, we hold that the trial court did not abuse its discretion in concluding that it was equitable and just for Rebecca to not recover attorney's fees from Harlandale.

Rebecca also argues that the trial court abused its discretion in awarding her attorney's fees against Garcia but denying her request for attorney's fees against Harlandale because "the claims against both defendants and the requested relief arose out of identical facts, making the court's distinction between the two defendants arbitrary and unreasonable." We disagree. There was substantial evidence here of Garcia's wrongdoing. Garcia moved out of District Seven on November 10, 2000. Although Garcia no longer lived in District Seven, on March 20, 2001, he swore that he was a resident of District Seven. There is, therefore, evidence of Garcia's intentional efforts to win an election for a position for which he was not eligible. With regard to Harlandale, however, the only evidence Rebecca can point to of its wrongful conduct is her and her husband's comments at the March 19, 2001 open meeting. Given these facts, the trial court did not abuse its discretion in concluding that it was equitable and just to order Garcia to pay Rebecca's attorney's fees but not equitable for Harlandale to pay Rebecca's attorney's fees.

Amount of Attorney's Fees

In her second issue, Rebecca argues that the trial court erred in only awarding her $5,000 in attorney's fees. According to Rebecca, the undisputed evidence shows that she is entitled to $8,865.86 in attorney's fees. We disagree. In fact, the opposite is true: there is no evidence that Rebecca is entitled to an award of attorney's fees at all.

A trial court abuses its discretion by awarding attorney's fees when there is insufficient evidence that the fees were reasonable and necessary. Boquet, 972 S.W.2d at 21; Tex. River Barges v. City of San Antonio, 21 S.W.3d 347, 358 (Tex. App.--San Antonio 2000, pet. denied). Here, there was no evidence of Rebecca's reasonable and necessary attorney's fees. At the evidentiary hearing, Rebecca testified to the following:

Q: Let me hand you what's been marked as Exhibit 4. Can you tell the court what that exhibit is?

A: This is my billing statement for the services of this lawsuit.

Q: And what is the total amount that's on the bottom?

A: $8,865.86.

Q: Did you agree to pay that if the court did not award fees?

A: Yes.

Q: And do you have the funds to pay those fees?

A: No.

Plaintiff's Exhibit 4 is an itemized bill prepared by Rebecca's attorney. Rebecca's testimony and Plaintiff's Exhibit 4, however, are not evidence that Rebecca's attorney's fees were reasonable and necessary. (3) See In re T.L.K., 90 S.W.3d 833, 841 (Tex. App.--San Antonio 2002, no pet.) ("Expert testimony is necessary to establish reasonableness of attorney's fees."). A trial court may not adjudicate reasonableness on judicial knowledge and without the benefit of evidence. Id. Because there was no evidence that Rebecca's attorney's fees were reasonable and necessary, the trial court abused its discretion in awarding Rebecca attorney's fees at all. Boquet, 972 S.W.2d at 21. (4) We, therefore, overrule her second issue.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

1. In her original brief on the merits, Rebecca also argues that the trial court erred in failing to file findings of fact and conclusions of law. Agreeing with Rebecca, we abated this appeal and ordered the trial court to file findings of fact and conclusions of law. After the trial court filed its findings of fact and conclusions of law, we allowed the parties to file supplemental briefs.

2. In Finding of Fact No. 16, the trial court found that "[o]n March 20, 2001, Mr. Adolph Garcia filed as a Candidate for Trustee, District 7, for the Harlandale Independent School District under oath that his residence was 711 Berlin, San Antonio, Texas 78211, which was in District 7 of the Harlandale Independent School District." In her supplemental brief, Rebecca did not challenge this finding of fact by the trial court. If an appellant does not challenge the trial court's finding of fact on appeal, the finding of fact is binding on both the party and the appellate court. Seelbach v. Clubb, 7 S.W.3d 749, 757 (Tex. App.--Texarkana 1999, pet. denied); Wade v. Anderson, 602 S.W.2d 347, 349 (Tex. Civ. App.--Beaumont 1980, writ ref'd n.r.e.); Lovejoy v. Lillie, 569 S.W.2d 501, 504 (Tex. Civ. App.--Tyler 1978, writ ref'd n.r.e.).

3. Rebecca emphasizes that no party objected to this evidence at the hearing. However, although this evidence is undisputed, it still does not amount to evidence of reasonable and necessary attorney's fees.

4. Because this was not brought as a cross-issue, we affirm Rebecca's attorney fee award against Garcia.