Town & Country Partnership, ANDV 97, Inc., Indiv. and in Its Official Capacity as General Partner of Town & Country Partnership, and Moody-Rambin Town & Country, Ltd., Indiv. and in Its Official Capacity as General Partner of Town & Country Partnership v. Frontier Leasing Corporation

Opinion issued March 19, 2009 In The Court of Appeals For The First District of Texas NO. 01-07-00555-CV TOWN & COUNTRY PARTNERSHIP, ANDV 97, INC., INDIVIDUALLY AND IN ITS OFFICIAL CAPACITY AS GENERAL PARTNER OF TOWN & COUNTRY PARTNERSHIP, MOODY-RAMBIN TOWN & COUNTRY, LTD., INDIVIDUALLY AND IN ITS OFFICIAL CAPACITY AS GENERAL PARTNER OF TOWN & COUNTRY PARTNERSHIP, Appellants V. FRONTIER LEASING CORPORATION, Appellee On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2006-35492 MEMORANDUM OPINION The trial court rendered summary judgment in favor of appellants (“Town & Country”). We determine whether the trial court abused its discretion in denying Town & Country’s request for attorney’s fees and costs of court. We affirm as modified. Facts This appeal arises from a dispute between Town & Country, the owner of a commercial rental property, and Frontier, a leasing company. Frontier obtained a security interest in the equipment of one of Town & Country’s tenants. Pursuant to a Subordination of Landlord’s Lien Agreement (the “Agreement”), Town & Country agreed to subordinate its statutory landlord’s lien to Frontier’s security interest. The Agreement included a clause entitling the prevailing party in any litigation to enforce or interpret the Agreement to attorney’s fees. When Town & Country later obtained a writ of possession and took possession of the equipment for the tenant’s failure to pay rent, Frontier sued on the Agreement. Frontier moved for partial summary judgment on liability. Town & Country responded and filed a cross-motion for summary judgment. As part of its cross-motion, Town & Country sought attorney’s fees as the prevailing party under the agreement. The trial court denied Frontier’s motion, granted Town & Country’s motion as to liability, and denied Town & Country’s motion as to attorney’s fees. Summary Judgment In its sole issue on appeal, Town & Country argues that the trial court abused its discretion in denying Town & Country’s cross-motion for summary judgment to recover attorney’s fees. Standard of Review We review the trial court’s ruling on a summary judgment motion de novo. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The standard for appellate review is whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). We view the evidence in a light most favorable to the non-movant, making all reasonable inferences and resolving all doubts in the non-movant’s favor. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). The movant bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When a trial court’s order granting summary judgment does not specify the grounds relied upon, the reviewing court must affirm summary judgment if any of the summary judgment grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000). Analysis A. Subordination Agreement Town & Country argues that the trial court erred in denying its request for attorney’s fees because paragraph 7 of the Agreement mandates the award of fees to Town & Country as the prevailing party in this action for breach of the Agreement. The general rule in Texas is that attorney’s fees incurred by a party to litigation are not recoverable against his adversary in a breach of contract action. Weng Enters., Inc. v. Embassy World Travel, Inc., 837 S.W.2d 217, 222 (Tex. App.—Houston [1st Dist.] 1992, no writ) (citing Turner v. Turner, 385 S.W.2d 230, 233 (Tex. 1964)). However, parties to a contract may provide by agreement that the prevailing party is entitled to recover attorney’s fees. Id. A prevailing party is the party “who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of its original contention.” Johns v. Ram-Forwarding, Inc., 29 S.W.3d 635, 637-38 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (citing City of Amarillo v. Glick, 991 S.W.2d 14, 17 (Tex. App.—Amarillo 1997, pet. denied)). Determination of whether a party is the prevailing or successful party must be based upon success on the merits, and not on whether damages were awarded. Glick, 991 S.W.2d at 17; see also Robbins v. Capozzi, 100 S.W.3d 18, 27 (Tex. App.—Tyler 2002, no pet.). In other words, the prevailing party is the party who is vindicated by the trial court’s judgment. Glick, 991 S.W.2d at 17. Here, paragraph 7 of the Agreement provides that “[i]n any litigation to enforce or interpret this Agreement, the prevailing party shall be entitled to recover its attorney’s fees and costs of court.” The question then becomes whether this litigation was premised on the enforcement or interpretation of the Agreement. If so, Town & Country should have recovered its attorney’s fees as the prevailing party. It is undisputed that Frontier filed this action and pursued a claim to interpret and enforce the Agreement against Town & Country in this case. In its original and amended petitions as well as its motion for partial summary judgment, Frontier asserts that Town & Country breached the Agreement. In its motion for partial summary judgment, Frontier asks the trial court to interpret the Agreement as a contract and enforce the Agreement in assessing damages against Town & Country. Frontier’s entire motion for partial summary judgment is premised on Town & Country’s alleged breach of the Agreement. Frontier even asserts in its original petition that it is entitled to attorney’s fees in the litigation regarding Town & Country’s alleged breach of the Agreement. The trial court denied Frontier’s motion for summary judgment on the breach of contract claim and granted Town & Country’s cross-motion for summary judgment. Accordingly, Town & Country successfully defended against Frontier’s claims of breach and, under paragraph 7 of the Agreement, should be awarded its attorney’s fees. Nevertheless, Frontier contends the trial court was correct in denying Town & Country’s recovery of attorney’s fees because the trial court based its final decision on its interpretation of the Texas Property Code and not on the terms of the Agreement. Frontier contends that, although it sought summary judgment on its claim for breach of the Agreement, in its response and cross-motion for summary judgment, Town & Country based its defense on the fact that it had not technically exercised its landlord’s lien because it had not complied with certain provisions of the Texas Property Code. The trial court ultimately denied Frontier’s motion for partial summary judgment and granted Town & County’s cross-motion without stating the reasons for its decision. However, regardless of whether the court based its decision on provisions of the Property Code or on the terms of the Agreement, Town & Country is entitled to the recovery of attorney’s fees in this case. The holdings in Robbins v. Capozzi and Probus Properties v. Kirby, are instructive to our analysis. Robbins, 100 S.W.3d 18, 27 (Tex. App.—Tyler 2002, no pet.); Probus Properties, 200 S.W.3d 258, 265 (Tex. App.—Dallas 2006, pet. denied). In Robbins, the Tyler Court of Appeals held that the defendants were entitled to their attorney’s fees because they were the “prevailing party” in summary judgment litigation based on a real estate contract. Robbins, 100 S.W.3d at 27. Even though the court ultimately decided the case on grounds of statutory fraud, common law fraud, and DTPA violations, the plaintiff’s original motion was based on a real estate contract with a clause awarding attorney’s fees to the prevailing party in any legal proceeding brought under or with respect to the contract. Id. at 26-27. The court held that defendants were the “prevailing party” because they successfully defended a claim brought regarding the sales contract, even though the trial court’s ruling was ultimately decided on other grounds, and affirmed the trial court’s award of attorney’s fees to the defendants. Id. at 27. Similarly in Probus Properties v. Kirby, the parties had a lease agreement which provided that “if, due to any breach or default, it becomes necessary for one of the parties to retain an attorney to ‘enforce or defend any of its rights or remedies hereunder,’ the prevailing party will be entitled to reasonable attorneys’ fees.” 200 S.W.3d at 265. The Dallas Court of Appeals sustained a no-evidence point against Kirby, reversed a jury verdict in Kirby’s favor, and remanded to the trial court with instructions to the trial court to award attorney’s fees to Probus because Probus successfully defended against a cause of action regarding the lease agreement. Id. In this case, Town & Country, like the defendants in Robbins and Probus, was the prevailing party and entitled to an award of its attorneys fees under the terms of the Agreement because it successfully defended the action on the main issue. Robbins, 100 S.W.3d at 27; Probus Properties, 200 S.W.3d at 265. B. Attorney’s Fee Affidavit We must now consider whether the attorney’s fees affidavit was sufficient to support an award of attorney’s fees in this case. The amount of an award of attorney’s fees rests in the sound discretion of the trial court, and its judgment will not be reversed on appeal absent a clear showing of abuse of discretion. Owen Elec. Supply, Inc. v. Brite Day Constr., Inc., 821 S.W.2d 283, 288 (Tex. App.—Houston [1st Dist.] 1991, writ denied). When a movant includes a prayer for attorney’s fees in its summary judgment motion, an affidavit should be attached to the motion, and constitutes “expert opinion testimony” that may be considered regarding the movant’s attorney’s fees. Id. To create a fact issue, the non-movant must file a counter-affidavit, no later than 30 days after receipt of the movant’s affidavit, contesting the reasonableness of the movant’s attorney’s fee claim. Id. (citing Tesoro Petrol. Corp. v. Coastal Ref. & Mktg., Inc., 754 S.W.2d 764, 767 (Tex. App.—Houston [1st Dist.] 1988, writ denied)); see also Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (Vernon 2008). Unless a controverting affidavit is filed, an affidavit as to the amount of attorney’s fees is presumed reasonable. Tex. Civ. Prac. & Rem. Code Ann. § 18.001(b) (Vernon 2008); Hunsucker v. Fustok, 238 S.W.3d 421, 432 (Tex. App.—Houston [1st Dist.] 2007, no pet.). When the testimony regarding attorney’s fees is clear, direct, and positive and not contradicted by any other witness or attendant circumstances and could have been easily controverted by the non-movant, the movant establishes the amount of attorney’s fees as a matter of law, even if the testimony comes from an interested witness. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). The trial court abuses its discretion in denying attorney’s fees when the movant files an affidavit for fees and no fact issue is created by the non-movant. See Hunsucker, 238 S.W.3d at 432 (citing Ragsdale, 801 S.W.2d at 882). Here, Town & Country attached the affidavit of its attorney to its motion for summary judgment. In this affidavit, Town & Country’s attorney detailed the specific work he and his law firm performed in the defense of Town & Country, including a number of specific tasks, total number of hours worked, and estimates of charges for any appellate work. Frontier failed to raise a material fact issue as to the reasonableness of the fees set forth in the affidavit because it filed no affidavit controverting the attorney’s testimony, even though it could have readily done so if it believed his claimed fee was unreasonable. Such uncontroverted testimony will be taken as true as a matter of law when, as here, the opposing party has means and opportunity to disprove it. Ragsdale, 801 S.W.2d at 882. The amount requested was clear, direct, and positive in this case. Although the trial court had discretion to award less than the requested amount if the amount requested was unreasonable, not credible, or questionable, the court here abused its discretion in awarding Town & Country no attorney’s fees at all in the face of uncontroverted evidence of fees incurred and anticipated. See Hunsucker, 238 S.W.3d at 432; Ragsdale, 801 S.W.2d at 882. Frontier contends that Town & Country’s affidavit for attorney’s fees was insufficient because it failed to include “an itemized statement of the service and charge” as required by Section 18.001 of the Texas Civil Practices and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 18.001(c)(3) (Vernon 2008). Frontier asserts that the affidavit did not identify how many hours were spent on each specific task and the corresponding rate charged. However, an attorney’s fee affidavit need not do so. See Brighton Homes, Inc. v. McAdams, 737 S.W.2d 340, 344 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.) (holding there is no strict requirement that the work of an attorney be expressed in terms of hours spent; the amount of work expended can be proved by alternative methods including evidence of what tasks were taken on behalf of the client); Hugh Wood Ford, Inc. v. Galloway, 830 S.W.2d 296, 298 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (holding that attorney’s detail concerning the work he had done, together with his total estimate of hours worked, was sufficient to support an award of attorney’s fees). Here, Town & Country’s attorney provided an affidavit which sufficiently detailed the nature and extent of the services rendered, as well as testimony regarding his familiarity with fees customarily charged for similar services in the area. Accordingly, the trial court should not have denied Town & Country its attorney’s fees for lack of a sufficient, uncontroverted affidavit. Taking into consideration (1) the evidence presented to the trial court regarding attorney’s fees and (2) the fact that no controverting affidavit or other evidence was submitted regarding the reasonableness of legal fees, we hold that a reasonable attorney’s fee for the necessary legal services rendered on behalf of Town & Country in this case, including the filing of Town & Country’s Responses to Frontier’s Motion for Partial Summary Judgment and its own Cross-Motion for Summary Judgment, is $20,890. Under the facts of this case, we also hold that the uncontroverted evidence establishes that $25,000 is a reasonable attorney’s fee for the handling of post-judgment motions and the prosecution or defense of an appeal in the Court of Appeals of Texas. In the event of the filing of a Petition for Review in the Supreme Court of Texas, we hold that a reasonable attorney’s fee for the necessary legal services to be rendered in this case in the making or responding to a Petition for Review is $25,000. Finally, in the event the Petition for Review to the Supreme Court of Texas is granted, we hold that a reasonable attorney’s fee for the necessary legal services in the handling of that portion of the appeal is $10,000. Conclusion We sustain appellants’ sole issue, modify the judgment of the trial court to award the attorney’s fees described above in favor of the appellants, and, as modified, affirm the grant of summary judgment to appellants. George C. Hanks, Jr. Justice Panel consists of Justices Jennings, Hanks, and Bland