IN THE SUPREME COURT OF TEXAS
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No. 08-0504
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Midland Western Building L.L.C., Petitioner,
v.
First Service Air Conditioning Contractors, Inc., Respondent
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On Petition for Review from the
Court of Appeals for the Eleventh District of Texas
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PER CURIAM
When Midland Western Building, L.L.C. allegedly failed to pay for air conditioning services performed by First Service Air Conditioning Contractors, Inc., First Service sued Midland Western on a sworn account. First Service sought at least $21,693.56, the principal amount due on the account, plus attorney’s fees.
At
trial, attorney Brian Carney testified that $24,000 to $26,000 was a reasonable
fee for preparing and trying the case, with an additional $7,000 to $10,000 for
an appeal to the court of appeals and $5,000 for an appeal to this Court.
Carney had reviewed First Service’s legal bills before testifying, but the
bills themselves were not introduced into evidence. Midland Western
cross-examined Carney on the Arthur Andersen1
factors, and Carney admitted that some of the bills involved work related to
parties that were no longer in the case.
The
jury awarded First Service $14,645.10 in damages but no attorney’s fees, and
the trial court signed a judgment in conformance with the verdict. First
Service appealed, arguing that the trial court erred in failing to award mandatory
attorney’s fees because there was no evidence to support the jury’s answer of
zero attorney’s fees, and First Service conclusively
established its reasonable and necessary fees. The court of appeals, citing Ragsdale
v. Progressive Voters League, 801 S.W.2d 880 (Tex. 1990), noted that the
only evidence regarding attorney’s fees came from Carney, and “[w]hen the
evidence is not contradicted by another witness, or contradicted by
circumstances, and it is clear, direct, positive, and free from contradiction,
inaccuracies, or circumstances that cast suspicion on the evidence, it is taken
as true as a matter of law.” ___ S.W.3d ___, ___. Concluding that Carney’s
testimony satisfied those requirements, the court of appeals reversed the trial
court’s judgment on attorney’s fees and rendered judgment for $24,000 in fees.
We recently decided Smith v.
Patrick W.Y. Tam Trust, ___ S.W.3d ___ (Tex. 2009), in which we held that
an appellate court’s award of the full amount of fees requested, despite the
jury’s rejection of a substantial portion of the damages sought, was improper
because the fee, even if supported by uncontradicted
testimony, was “unreasonable in light of the amount involved and the results
obtained, and in the absence of evidence that such fees were warranted due to
circumstances unique to this case.” Smith, ___ S.W.3d
at ___. Thus, “the evidence did no more than raise a fact issue to be
decided by the jury.” Id. at ___.
Such is the case here. The court of appeals’ fee award was not supported by uncontradicted testimony, as Carney admitted on cross examination that some of the fees involved claims against parties other than Midland Western. Thus, fees could not be awarded as a matter of law. See id. at ___; Ragsdale, 801 S.W.2d at 882.
The
jury’s award of no fees, however, was improper. First Service offered evidence
of its attorney’s fees and the value thereof. While the jury could have
rationally concluded that a reasonable and necessary fee was less than the
amount sought, an award of no fees was improper in the absence of evidence
affirmatively showing that no attorney’s services were needed or that any
services provided were of no value. Smith, ___ S.W.3d
at ___; Cale’s Clean Scene Carwash, Inc. v.
Hubbard, 76 S.W.3d 784, 787 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
Accordingly, First Service is entitled to a new trial on attorney’s fees.
We reverse the court of appeals’ judgment and remand the case to the trial court for a new trial on attorney’s fees. Tex. R. App. P. 60.2(d)
Opinion Delivered: November 20, 2009