Edward D. Baldarrama, Edward M. Baldarrama, and Alamo City Sky Dive, Inc. v. City of Castroville, Texas--Appeal from County Court at Law of Medina County

MEMORANDUM OPINION

No. 04-03-00035-CV

Edward D. BALDERRAMA,

Edward M. Balderrama, and Alamo City Sky Dive, Inc.,

Appellants

v.

CITY OF CASTROVILLE, TEXAS,

Appellee

From the County Court at Law, Medina County, Texas

Trial Court No. 1456

Honorable James M. Simmonds, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 3, 2003

AFFIRMED

In this appeal, appellants assert the trial court abused its discretion in awarding excessive attorney's fees and costs. We disagree, and affirm the trial court's judgment.

BACKGROUND

The City of Castroville ("the City") sued Edward D. Balderrama, Edward M. Balderrama, and Alamo City Sky Dive, Inc. (collectively, "appellants") for forcible entry and detainer and past due rents in the justice of the peace court. After the City obtained a favorable judgment, appellants appealed to county court. On September 3, 2002, the City filed a motion for summary judgment in which it stated it had incurred attorney's fees in excess of $3,000. The request for attorney's fees was supported by the affidavit of Barbara Quirk. A hearing on the motion for summary judgment was set for September 25, 2002. On September 25th, Ms. Quirk filed an amended affidavit in which she stated the City had incurred attorney's fees in excess of $10,000. On September 25th, the trial court rendered a final judgment, which recited that a default judgment was granted against Edward D. Balderrama and Alamo City Sky Dive, Inc. and summary judgment was granted against Edward M. Balderrama. In the final judgment, the trial court also stated as follows:

Damages in the amount of $5,400.00 in back rent and lost rentals plus $2,100.00 in other costs owed to [the City] are awarded plus attorney's fees in (the amount) of $10,000.00 plus court costs are to be paid by [the appellants].

On appeal, appellants challenge only the award of attorney's fees and "other costs."

ATTORNEY'S FEES

In issue one, appellants assert the trial court erred in awarding attorney's fees in excess of the amount established by the summary judgment evidence properly before the court. In issue two, appellants contend the amount of attorney's fees awarded is unreasonable.

Appellants contend the City did not receive leave of court to file Ms. Quirk's amended affidavit; therefore, the only evidence properly before the court was Ms. Quirk's original affidavit stating fees in excess of $3,000. The City counters that the record on appeal is incomplete and, therefore, there is no indication of whether the trial court granted it leave to file the amended affidavit. Affidavits in support of a motion for summary judgment must be filed at least twenty-one days before the time specified for hearing, except by leave of court. See Tex. R. Civ. P. 166a(c). Summary judgment evidence that is late-filed without leave of court is not properly before the trial court. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Valores Corp. v. McLane Co., Inc., 945 S.W.2d 160, 162 (Tex. App.--San Antonio 1997, writ denied). Where the record contains nothing indicating the trial court considered a late-filed affidavit, we must presume the trial court did not consider it and we will do likewise. INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985); Neimes v. Ta, 985 S.W.2d 132, 138 (Tex. App.--San Antonio 1998, pet. dism'd by agr.). Because the record does not indicate the trial court granted the City permission to late-file Ms. Quirk's amended affidavit and because the City does not dispute appellants' assertion that no such permission was given, the amended affidavit was not properly before the trial court and we assume it was not considered by the court for summary judgment purposes. See id.; Tex. R. App. P. 38.1(f). Accordingly, we sustain appellants' first issue.

However, affidavits are evidence that will satisfy an award of unliquidated damages, such as attorney's fees. Texas Commerce v. New, 3 S.W.3d 515, 517-18 (Tex. 1999). The docket sheet reveals the trial court awarded attorney's fees based upon Ms. Quirk's affidavit. Thus, Ms. Quirk's amended affidavit constitutes a record upon which the trial court may base an award of fees under a default judgment. Id.

In her amended affidavit, Ms. Quirk stated, "Plaintiffs have incurred attorney's fees for my services for in excess of $10,000.00 based upon hours in excess of 80 hours I have spent on preparation and trial at a rate of $125.00 per hour. This amount of hours and the total dollar amount is reasonable considering that this case is now in the appeal phase and it is the date of the jury trial." The record establishes that the City filed its original complaint for forcible entry and detainer in June 2002 in the justice of the peace court. The suit was appealed to county court, in which the City filed a motion for summary judgment and prepared for trial. The case was called for trial on September 25, 2002. During this time, appellants continued to occupy the premises. Based on the record, we cannot say the trial court abused its discretion in awarding the City attorney's fees in the amount of $10,000. Appellants do not assert the trial court erred by not segregating the fees according to the amounts expended in prosecuting the suit against each defendant. Accordingly, we overrule appellants' second issue and affirm the trial court's award of $10,000 in attorney's fees to be paid by the appellants.

COSTS

Appellants assert the trial court erred in awarding the City "other costs" in the amount of $2,100 because the only evidence in support of such an award indicates they owed the City $1,054.16 in fuel costs. Appellants contend the award of any amount over $1,054.16 in costs was an abuse of discretion. The summary judgment evidence establishes that the City was charged a late fee when appellants' rental check was returned based on insufficient funds. While the final judgment did not award prejudgment interest, the parties' lease agreement provided that appellants would be charged interest at a rate of twelve percent on all past due payments. Accordingly, we can find no abuse of discretion on the trial court's part in awarding the City $2,100 in other costs. We overrule appellants' third issue and affirm the trial court's award of $2,100 in other costs to be paid by the appellants.

CONCLUSION

For the reasons stated above, we affirm the trial court's judgment.

Sandee Bryan Marion, Justice