UNION GAS CORP. v. EVELYN TITTIZER, ET AL.--Appeal from 267th District Court of Victoria County

NUMBER 13-01-735-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI - EDINBURG

UNION GAS CORPORATION, Appellant,

v.

 EVELYN TITTIZER, ET AL., Appellees.

On appeal from the 267th District Court

of Victoria County, Texas.

  MEMORANDUM OPINION ON REMAND[1]

Before Justices Hinojosa, Rodriguez and Wittig[2]

Memorandum Opinion on Remand by Justice Wittig

The parties disputed the amount of royalties owed by Union Gas Corporation to various landowners under the pooling provisions of multiple oil and gas leases. The Texas Supreme Court held that this court was correct in concluding that Tittizer was not entitled to royalties for production between March 27, 2000 and August 7, 2000. Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861 (Tex. 2005) (per curiam). The supreme court also concluded that Union Gas preserved its issue concerning the reasonableness of $150,000 in attorney=s fees awarded by the trial court to Tittizer. Because we had concluded otherwise, this cause has been remanded to us solely on the question of the reasonableness of the attorney=s fees awarded to Tittizer.

I

Ordinarily we review an award of attorney fees utilizing an abuse of discretion standard. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.1985). In a nonjury trial, where findings of fact and conclusions of law are neither filed nor timely requested, it is implied that the trial court made all necessary findings to support its judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). We view the evidence in the light most favorable to the trial court's ruling and indulge every presumption in its favor. Phillips & Akers, P.C. v. Cornwell, 927 S.W.2d 276, 279 (Tex. App.BHouston [1st Dist.] 1996, no writ). The Texas Supreme Court informs us that the factors that a fact finder are to consider when determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997).

II

The trial court=s judgment recited that Tittizer was entitled to royalties for the disputed period of March 27, 2000 to August 7, 2000. However, both this court and the Supreme Court concluded otherwise. Tittizer, 171 S.W.3d at 863. Accordingly, this portion of the judgment was not a Avalid claim@ upon which to base the award of attorney=s fees. Tex. Civ. Prac. & Rem. Code Ann. ' 38.001 (Vernon 1997). To recover attorney's fees under section 38.001, a party must (1) prevail on a cause of action for which attorney's fees are recoverable, and (2) recover damages. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex.1995).

At the same time, Union Gas admitted that it suspended payments lawfully due to Tittizer beginning in late August 2000 in order to protect itself pending the trial court=s determination of the respective royalty rights.[3] Contrary to this position, the judgment of the trial court reflects that Union Gas was ordered to pay Tittizer a net unit royalty of .0241152. Accordingly, we hold that this portion of the judgment reflects a valid claim upon which to base the award of attorney=s fees. See Tex. Civ. Prac. & Rem. Code Ann. ' 38.001(8) (Vernon 1997). Tittizer prevailed on a cause of action for which attorney=s fees are recoverable and she recovered damages. See Beaston, 907 S.W.2d at 437.

III

We recognize that the trial court has a great deal of discretion in determining the amount of attorney=s fees. Oake, 692 S.W.2d at 455. Here, however, it is readily apparent that the trial court based its decision of the amount of attorney=s fees, at least to some degree, upon a disallowed claim. Furthermore, Tittizer argued AThis was not an hourly fee, but a contingent one.@ Because part of the royalty claim was disallowed, any contingency component of the fee would have to be recalculated. It is problematic, if not impossible for this Court to review the determination of how much of the attorney=s fees awarded are fair, reasonable and just, and based upon the remaining valid claim(s) under the circumstances presented. In the interests of justice, a remand on the issue of attorney=s fees and costs to the trial court for its determination is appropriate. See Tex. R. App. P. 43.3(b); Rente Co. v. Truckers Exp., Inc., 116 S.W.3d 326, 335 (Tex. App.BHouston [14th Dist.] 2003, no pet.); see also Sava Gumarska in Kemliska Industria D.D. v. Advanced Polymer Sciences, Inc., 128 S.W.3d 304, 324 (Tex. App.BDallas 2004, no pet.) (providing for remand of attorney=s fees issue under Tex. R. App. P. 44.1(b)); Hartsell v. Town of Talty, 130 S.W.3d 325, 330 (Tex. App.BDallas 2004, pet. denied).

We remand the issue of reasonable attorney=s fees to be awarded to Tittizer for redetermination by the trial court. The trial court should also re calculate the correct amount of past royalties due from August 7, 2000 through April 30, 2001, in the event the parties fail to enter into a stipulation as to the correct amount.[4] The judgment shall then be reformed in accordance with this opinion and the Texas Supreme Court's holding in Tittizer v. Union Gas Corp., 171 S.W.3d. 857 (Tex. 2005) (per curiam).

DON WITTIG

Justice

Memorandum Opinion on Remand delivered

and filed this 11th day of May, 2006.

[1] We withdraw our opinion of January 26, 2006, and substitute the following.

[2] Retired Fourteenth Court of Appeals Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. Tex. Gov=t Code Ann. ' 74.003 (Vernon 2005).

[3] This statement may be found in appellant=s brief before us at page 10.

[4] The trial court=s judgment reflected royalties due in the amount of $485,042.31 through April 30, 2001. However, the portion accruing between March 27, 2000, and August 7, 2000, has been disallowed leaving any unpaid portion that may still be due between August 8, 2000, and April 30, 2001.