A.J.P. Oil Company, LLC D/B/A Grapeland Fuel & BBQ, and Andrew J. Patton v. Velvin Oil Company, Inc. ( 2015 )


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  •                                                                                  ACCEPTED
    06-15-00061-cv
    SIXTH COURT OF APPEALS
    TEXARKANA, TEXAS
    12/18/2015 11:05:02 AM
    DEBBIE AUTREY
    CLERK
    NO. 06-00061-CV
    IN THE SIXTH COURT OF APPEALS FOR THE STATE OF TEXAS
    FILED IN
    6th COURT OF APPEALS
    TEXARKANA, TEXAS
    12/18/2015 11:05:02 AM
    A.J.P. OIL COMPANY, LLC d/b/a GRAPELAND       FUEL &DEBBIE
    BBQ,AUTREY
    &
    Clerk
    ANDREW J. PATION
    Appellant
    VS.
    VELVIN OIL COMPANY, INC.
    Appellee
    ON APPEAL FROM THE FOURTH JUDICIAL DISTRICT COURT OF
    RUSK COUNTY, 'I.EXAS, TRIAL COURT NO. 2014-362
    BRIEF OF APPELLEE
    LAW OFFICE OF RONNIE HORSLEY, P.C.
    Attorney for Appellee, Velvin Oil Company, Inc.
    RONNIE HORSLEY
    P.O. Box 7017
    Tyler, TX 75711
    Telephone: (903) 593-7314
    Facsimile: (903) 593-3450
    Email: horsleylaw@tyler.net
    State Bar No. 10014000
    ORAL ARGUMENT WAIVED
    IDENTITY OF PARTIES AND COUNSEL
    Appellants/Defendants:
    A.J.P. Oil Company, LLC, d/b/a Grapeland Fuel & BBQ; Andrew J. Patton
    Counsel for Appellants/Defendants:
    Jaclyn D. Patton
    639 Heights Blvd.
    Houston, TX 77007
    Phone: (713)730-9946
    Fax: (713) 583-4180
    Email: jaclyn@bcestateplanning.com
    State Bar No. 24085521
    William R. Pemberton
    P.O. Box 1112
    Crockett, TX 75835
    Phone: (936) 544-4111
    Fax: (936) 544-5023
    Email: bill@permbertontriallaw.net
    State Bar No. 15735500
    Appellee/Plaintiff:
    Velvin Oil Company, Inc.
    Counsel for Appellee/Plaintiff
    Ronnie Horsley
    P.O. Box 7017
    Tyler, TX 75711
    Phone: (903) 593-7314
    Fax: (903) 593-3450
    Email: horsleylaw@tyler.net
    State Bar No. 10014000
    TABLE OF CONTENTS
    PAGE
    I.     STATEMENT OF THE CASE ..................................................... 1
    II.    APPELLEE'S RESPONSE TO APPELLANTS' ISSUES ................. 1
    III.   APPELEE CANNOT AGREE WITH THE STATEMENT OF
    FACTS AS PRESENTED BY APPELLANT .................................. 3
    IV.    APPELLEE'S STATEMENT OF FACTS ....................................... 3
    V.     SUMMARY OF ARGUMENT ..................................................... 4
    VL ARGUMENT ............................................................................. 6
    REPLY TO APPELLANTS' POINT NUMBER 1
    The court did not err in granting the Motion for Summary
    Judgment as the denial by Appellant was not sufficient to
    overcome the prima facie evidentiary effect of Plaintiff's
    Petition                                                                        6
    REPLY TO APPELLANTS' POINT NUMBER 2
    The appellant failed to plead the existence of the prior suit,
    failed to request an abatement of the pending suit and
    provided no evidence that the suits were identical in nature
    and character. The courts have consistently held that such
    a plea can be waived if not presented                                       .... .9
    REPLY TO APPELLANTS' POINT NUMBER 1D
    The court did not err in granting the appellee's attorneys
    fees as the summary judgment evidence of same was
    sufficient, and the credit agreement between the
    parties stipulated a reasonable attorney's fee as being
    one-third of the outstanding balance.
    VII. CONCLUSION
    CERTIFICATE OF COMPLIANCE .................................................................... 19
    CERTIFICATE OF SERVICE ................................................................................ 19
    TABLE OF AUTHORITIES
    STATE CASES
    PAGE
    Hartis v. Century Furniture Industries, Inc.,
    230 S.W.3rd 723, (Tex.App. —Houston [14th Dist.], no pet.) .................... 5
    Fisher v. Yates, 
    953 S.W.2d 370
    (Tex. APP—Texarkana, 1997 writ denied 
    988 S.W.2d 730
    per curium.)... 7
    General Electric Supply Company, a Division of General Elec. Co.
    v. Gulf Electroquip, Inc. 
    857 S.W.2d 591
    (Tex. App. —Houston[ 1st Dist], 1993 writ denied) ....................................... 7
    Boeker v. Syptak, 
    916 S.W.2d 59
     (Tex. App —Houston[1st Dist.] 1996, no writ .................................................. 8
    Composites, Inc. v. Westlake Styrene Corp.,
    15 S.W.3rd 124 (Tex. App. —Houston[1st Dist.] pet. Dismissed ................. 8
    Oliver v. Carter & Co. Irr., Inc.,
    08-01-00446CV, 
    2002 WL 1301568
    at p.5 ........................................................ 8, 9
    Norcross v. Conoco, Inc.,
    
    720 S.W.2d 627
    , 630 (Tex.App.-San Antonio 1986, no writ) ...................... 
    8 Taylor v
    . Fred Clark Felt Company,
    
    567 S.W.2d 863
    (Tex.Civ.App.-Houston
    [14th Dist.] 1979, writ ref'd n.r e)                                                             
    8 Day v
    . State 
    489 S.W.2d 368
    (Tex. 1972) ........................................................ 10, 12
    Attorney General of Texas v. Duncan,
    
    929 S.W.2d 567
    (Tex.App. - Fort Worth 1996, no writ)                                           11
    iv
    Hidalgo v. Surety Savings and Loan Association,
    
    462 S.W.2d 540
    , (Tex. 1971) ............................................................................. 11
    Beckman v. Beckman, 
    716 S.W.2d 83
    , 85-86
    (Tex. App. 1986), dismissed (Oct. 22, 1986) (p. 85-86) ............................. 11
    Curtis v. Gibbs, 
    511 S.W.2d 263
    , 267 (Tex.1974) ........................................... 11
    Cleveland v. Ward, 
    116 Tex. 1
    , 
    285 S.W. 1063
    , 1072 (1926) ......................... 11
    Texas Employers Insurance Association v. Baeza,
    
    584 S.W.2d 317
    , 321 (Tex.Ciy.App. Amarillo 1979, no writ) ................. 11-12
    Arthur Andersen v. Perry Equipment Corp.,
    
    945 S.W.2d 812
    (Tex. 1997)     ................................................................. 13, 14,16
    Estate of Tyner, 292 S.W.3rd 179 (Tex. App. —Tyler, 2009, no pet).. . 13, 14, 16
    Academy Corp. v. Interior Buildout & Turnkey Const. Inc.,
    
    21 S.W. 3rd
    732 (Tex. App-Houston [14th Dist.] no pet. 2000) ..................... 13
    AU Pharmaceutical, Inc. v. Boston,
    
    986 S.W.2d 331
    , 338 (Tex.App.-Texarkana 1999, no pet.) ............................. 14
    Basin Credit Consultants, Inc. v. Obregon, 
    2 S.W.3d 372
    , 373 (Tex.App.-San
    Antonio 1999, pet. denied) .................................................................................... 15
    RULES AND STATUTES
    TEXAS GOVERNMENT CODE ANNOTATED § 312.011(1)
    (Vernon 1998) .......................................................................................................... 8
    TEXAS RULES OF CIVIL PROCEDURE, RULE 185 ................................. 3, 6, 7
    TEXAS RULES OF CIVIL PROCEDURE, RULE 166a .............................. .7,14
    TEXAS RULES OF CIVIL PROCEDURE, RULE 93(3) .............................. 9,10
    TEXAS RULES OF CIVIL PROCEDURE, RULE 93(10) .......................... 7
    TEXAS RULES OF CIVIL PROCEDURE, RULE 95 .................................. 7
    RULE 185 TEXAS RULES OF CIVIL PROCEDURE .............................. ... 3, 6
    TEXAS DISCIPLINARY RULES OF PROFESSIONAL
    CONDUCT, RULE 1.04 ......................................................................... .13,14, 15, 16
    vi
    I. STATEMENT OF THE CASE
    Appellee, Velvin Oil Company, Inc. ("Velvin") agrees with the
    statement of the case submitted by Appellants (collectively referred to as
    AJP).
    II. APPELLEE'S RESPONSE TO APPELLANT'S ISSUES
    ISSUE 1: TRIAL COURT DID NOT ERR IN GRANTING THE MOTION
    FOR SUMMARY JUDGMENT:
    A.     Appellee's response to Appellants' ISSUE 1A, wherein
    Appellant alleges plaintiff's sworn account cannot be
    considered prima facie evidence to support summary judgment
    where an amended answer and a controverting affidavit was
    timely filed, is that the amended answer and its
    controverting affidavit actuallyconstitute a conditional
    denial.
    B.    Appellee's reply to Appellants' ISSUE 1B regarding Appellants'
    defense of payment on deliveries made after the claim of
    disputed diesel, is that the appellant predicates this issue on
    1
    facts which were not presented as Summary Judgment
    evidence and were not considered by the trial court.
    C.     Appellee's response to Appellants' ISSUE 1C regarding
    application of payments again is that appellant has attempted
    to make an issue of matters not in the record as evidence as
    there was no Summary Judgment evidence of such.
    D.     Appellee's response to Appellants' ISSUE 1D, regarding
    reasonableness of attorney's fees, is that judicial notice was not
    taken of the attorney's fees, rather, the award of attorney's
    fees was based on the affidavit of appellee's counsel which was
    not controverted by appellant, and the parties' credit agreement
    stipulated 1/3 to be a reasonable fee.
    ISSUE 2: TRIAL COURT DID NOT ERR IN DENYING THE MOTION FOR
    NEW TRIAL BECAUSE OF A PRIOR PENDING CASE.
    No Plea in Abatement was ever filed by the Appellant and the
    evidence did not establish facts which would entitle appellant to an
    abatement.
    2
    III. APPELLEE CANNOT AGREE WITH THE STATEMENT OF FACTS
    AS PRESENTED BY APPELLANT
    We are compelled to object to certain aspect of statement of facts and
    matters utilized by appellant including matters which were not placed into
    evidence and apparently were based on the personal experiences she had
    in Houston County in connection with another case and were not included
    in the trial court matter. Those include statements of fact which allege
    Velvin delivered tainted fuel; extensive correspondence between the
    parties, thousands of pages of discovery, etc. Appellant did not file an
    Answer or Motion to Transfer venue pointing out that the "second filed
    suit" was identical to the subject matter of the other suit.
    IV. APPELLEE'S STATEMENT OF FACTS
    Velvin filed its Plaintiff's Original Petition in the Fourth Judicial
    District Court of Rusk County on the 19th day of November, 2014. (CR5-
    CR15). The Petition was filed pursuant to Rule 185, Tex. R. Civ. Pro. AJP
    then filed its unverified Defendants' Original Answer on the 29th day of
    December, 2014. (Supp. CR5- CR9). AJP filed its Defendant's Motion to
    Transfer Venue on the 29th day of December, 2014. (CR16-CR45). Velvin
    filed its Response to Defendant's Motion to Transfer Venue on the 23rd day
    3
    of February, 2015. (2nd Supp. CR5-CR115). The Motion to Transfer Venue
    was denied after hearing on the 3rd day of March, 2015. (CR54). Velvin
    filed its Motion for Summary Judgment on the 30th day of March, 2015.
    (CR55-CR58). AJP filed an Amended Answer on the 6th day of April, 2015.
    (CR59-CR62) and also filed its Response to Motion for Summary Judgment
    on the 6th day of April, 2015 (CR63-CR75). Trial court granted Velvin's
    Motion for Summary Judgment on the 4th day of June, 2015. (CR76-CR77).
    AJP filed its Motion for New Trial on the 2nd day of July, 2015. (CR78-
    CR136) and the Trial court denied AJP's Motion for New Trial on the 20th
    day of August, 2015. (CR146)
    V. SUMMARY OF ARGUMENT
    Motion for Summary Judgment
    Although the court is limited in granting Plaintiff's Motion for
    Summary Judgment to the grounds set forth in the Motion, it is always
    been understood by Texas courts that the defendant in its response and its
    affidavits can establish sufficient grounds as a matter of law to have
    judgment rendered against it as in this case.
    4
    The plea of payment would ordinarily be sufficient to overcome and
    defeat the Summary Judgment. However, the "proof" consisting of a check
    does not rise to the level of an accounting as required by the rules. The
    Plea of "payment" is an affirmative defense as well as a plea in avoidance.
    The burden of proving same is on the Defendant AJP. Hartis v. Century
    Furniture Industries, Inc., 230 S.W.3rd 723, (Tex.App. —Houston [14th Dist.],
    no pet.).
    Motion for New Trial
    The Motion for New Trial (CR78-CR136) filed by appellant attempted
    to interject matters which had not been before the court in the Motion for
    New Trial (CR78-CR136) or in the Motion to Transfer Venue. (CR16-CR45).
    The appellant attempts to submit an issue regarding the defense of
    payment because" appellants instructed appellee that payments made
    after delivery of disputed diesel by appellee were not applied to charges
    for disputed diesel" (Appellee's ISSUE 1d, p. 3). There was no evidence
    supported or submitted to the court regarding this issue.
    5
    VI. ARGUMENT
    REPLY TO APPELLANTS' POINT NUMBER 1
    The court did not err in granting the Motion for Summary
    Judgment as the denial by Appellant was not sufficient to overcome the
    prima facie evidentiary effect of Plaintiff's Petition.
    Plaintiff's Original Petition (CR5-CR15) set forth a sworn account
    under RULE 185 I.EXAS RULES OF CIVIL PROCEDURE. The Defendants'
    Original Denial (Supp. CR5- CR9) was not sufficient to deny the account.
    The Amended Answer filed by Appellant (CR 59-CR62) does not deny the
    sworn account, rather, same simply interposes a suggestion of payment
    and a denial that the finance charges were due and owing. The verification
    accompanying this Amended Answer (CR 59- CR 62) does not contain
    facts, rather, it simply contains a statement:
    every statement contained in paragraph one and two of
    //
    defendant's first amended original answer is true and correct."
    Summary Judgment evidence must be based on personal knowledge,
    set forth facts which would be admissible in evidence and show the affiants
    6
    competency. Affidavits which merely adopt the factual allegations made in
    a response are not proper summary judgment evidence. Fisher v. Yates, 
    953 S.W.2d 370
    (Tex. APP—Texarkana, 1997 writ denied 
    988 S.W.2d 730
    per
    curium.) Similarly, in General Electric Supply Company, a Division of General
    Elec. Co. v. Gulf Electroquip, Inc. 
    857 S.W.2d 591
    (Tex. App. —Houston{ 1st
    Dist], 1993 writ denied)
    The Response to the Motion for Summary Judgment (CR63-CR75)
    again pleads payment and incorporates the affidavit of Andrew Patton.
    The affidavit also attaches as Exhibit 2 the credit terms and the personal
    guarantee of Mr. Patton. (CR 71) This instrument also includes the
    provision:
    "If Velvin Oil Co. finds it necessary to refer this
    account to an attorney for initiation of a lawsuit a fee
    of 33 1/3% of the outstanding balance plus any and
    all court costs shall be added to the account balance"
    (CR 71).
    The pleading filed does not entitle Appellant to present a defense to
    the account presented under RULES 185, 166a 93 (10) and 95, TEXAS
    7
    RULES OF CIVIL PROCEDURE. The Apellant's pleadings and the
    "affidavit" attached, do not constitute summary judgment evidence. Boeker
    v. Syptak, 
    916 S.W.2d 59
    (Tex. App—Houston[1st Dist.] 1996, no writ.
    At best the appellant by its pleading set out an affirmative defense on
    which it had the burden of establishing evidence at the summary judgment
    hearing. Composites, inc. v. Westlake Styrene Corp., 15 S.W.3rd 124 (Tex.
    App. —Houston[1st Dist.] pet. dismissed
    Oliver v. Carter & Co. Irr., Inc., 08-01-00446CV, 
    2002 WL 1301568
    at
    p.5, discusses the need for the qualifying response by citing the statutory
    definition of "affidavit": "a statement in writing of a fact or facts signed by
    the party making it, sworn to before an officer authorized to administer
    oaths,..."Tex.Gov't Code Ann. § 312.011(1)(Vernon 1998). No particular
    terminology is required by Section 312.011 to render a document an
    affidavit. Norcross v. Conoco, Inc., 
    720 S.W.2d 627
    , 630 (Tex.App.-San
    Antonio 1986, no writ). It is the substance and not the form of an affidavit
    that is important. 
    Id., citing Taylor
    v. Fred Clark Felt Company, 
    567 S.W.2d 863
    (Tex.Civ.App.-Houston [14th Dist.] 1978, writ ref'd n.r.e .). However, the
    form of a statement is important for purposes of determining whether such
    8
    statement qualifies as an affidavit that must accompany a written denial
    under Rules 185 and 93(10)." Oliver v. Carter & Co. Irr., Inc., 08-01-00446CV,
    
    2002 WL 1301568
    at p.5.
    It is submitted that the response of Appellant does not under the
    authorities cited.
    REPLY TO APPELLANTS' POINT NUMBER 2
    The appellant failed to plead the existence of the prior suit, failed
    to request an abatement of the pending suit and provided no evidence
    that the suits were identical in nature and character. The courts have
    consistently held that such a plea can be waived if not presented.
    The appellant complains in issue number two that there was a prior
    suit pending between the same parties. RULE 93(3) TEXAS RULES OF
    CIVIL PROCEDURE requires a pleading setting up any of the following
    matters be verified by affidavit "that there is another suit pending in this
    state between the same parties involving the same claim." No pleading to
    this effect were filed by appellant. The "Petition" (CR23-CR45 ) attached to
    the affidavit accompanying the Motion to Transfer Venue (CR16-CR45)
    does not set forth facts which could give rise to the matter "appearing" of
    9
    record. The instrument was part of the Venue allegation that the forum was
    not convenient, and was not offered as Summary Judgment evidence.
    A Plea in Abatement pursuant to RULE 93 (3) TEXAS RULES OF
    CIVIL PROCEDURE, must be specifically pleaded if one is claiming a prior
    suit pending between the same parties. Day v. State, 
    489 S.W.2d 368
    (Tex.
    1972). This plea must also be verified. An examination of the
    documentation in the file including the Original Answer (Supp. CR5- CR9),
    the Motion to Transfer Venue, (CR16-CR45), the Amended Answer (CR59-
    CR62) do not show any compliance or any effort by Appellant, and in fact,
    the only evidence produced by Appellant which could possibly
    substantiate such a plea is contained within the affidavit of Andrew Patton
    which accompanied the Motion to Transfer Venue (CR16-CR45 at p. 21-22)
    A file-marked copy of a Houston County Petition (not certified) as an
    exhibit to the Motion to Transfer Venue (CR16-CR45, p. 23-45) simply
    points out a dispute arising out of a delivery of allegedly defective diesel
    fuel. The Houston County Petition nor any of its attachments were offered
    as evidence in response to the Motion for Summary Judgment (CR55-CR58)
    or in connection with a Plea in Abatement. Attaching them to a pleading
    10
    does not constitute them as being evidence in this case, nor do the
    pleadings themselves constitute evidence. Attorney General of Texas v.
    Duncan, 
    929 S.W.2d 567
    (Tex.App. - Fort Worth 1996, no writ). Pleadings,
    even if sworn, do not constitute summary judgment evidence. Hidalgo v.
    Surety Savings and Loan Association, 
    462 S.W.2d 540
    , (Tex. 1971).
    AUTHORITIES:
    Beckman v. Beckman, 716 S.W2d 83, 85-86 (Tex. App. 1986), dismissed
    (Oct. 22, 1986) (p. 85-86)
    " With respect to the plea in abatement, the court in which suit is first filed
    acquires dominant jurisdiction to the exclusion of other coordinate courts.
    Curtis v. Gibbs, 
    511 S.W.2d 263
    , 267 (Tex.1974). Any subsequent suit
    involving the same parties and controversy must be dismissed if a party to
    that suit calls the second court's attention to the pendency of the prior
    lawsuit by plea in abatement. 
    Id. A plea
    in abatement grounded on the
    pendency of a prior suit must be predicated upon a state of facts that are
    seasonably alleged and proved, and, unless this is done, the subsequent
    suit is not abated. Cleveland v. Ward, 
    116 Tex. 1
    , 
    285 S.W. 1063
    , 1072 (1926);
    Texas Employers Insurance Association v. Baeza, 
    584 S.W.2d 317
    , 321
    11
    (Tex.Civ.App. — Amarillo 1979, no writ); Day v. State, 
    489 S.W.2d 368
    , 371
    (Tex.Civ.App. —Austin 1972, writ ref'd n.r.e.). In the absence of a
    seasonable plea in abatement, *86 the plea is waived. 
    Cleveland, 285 S.W.2d at 1072
    ."
    REPLY TO APPELLANTS POINT NUMBER 1D
    The court did not err in granting the appellee's attorneys fees as the
    summary judgment evidence of same was sufficient, and the credit
    agreement between the parties stipulated a reasonable attorney's fee as
    being one-third of the outstanding balance.
    Appellant placed before the court the parties' credit agreement as
    well as the personal guarantee. The agreement provides for the interest as
    described by appellant, it also describes that Velvin Oil is entitled to
    reasonable attorney's fee of one third of balance in the event of a lawsuit
    was filed. The signature of Andrew Patton confirms this agreement.
    The Appellants ISSUE 1D complains of the attorneys fees awarded by
    the court even though they are supported by the parties own contract and
    is supported by the affidavit of Appellee's attorney. The affidavit of
    William Pemberton (CR72- CR 75) leaves out the single critical statement
    12
    required to oppose the Affidavit of Ronnie Horsley (CR57) as to reasonable
    attorney's fee, and that it does not contain a statement that the fees
    requested are unreasonable. Further RULE 1.04 of the TEXAS
    DISCIPLINARY RULES OF PROFESSIONAL CONDUCT does not require
    all the elements listed there, nor does the Arthur Anderson case or
    subsequent Texas cases require a listing of all eight requirements as a
    condition of recovery of a reasonable fee. Arthur Andersen v. Perry
    Equipment Corp., 
    945 S.W.2d 812
    (Tex. 1997). particular, since the parties
    have a signed agreement setting forth Appellee's entitlement to the
    attorney's fees of 33 1/3% of the balance, and the Appellant agreed to such
    terms in writing, there can be little dispute. The case of the Estate of Tyner
    discusses the affidavit and the in applicability of the "checklist". Estate of
    Tyner, 
    292 S.W. 3rd
    179 (Tex. App. —Tyler, 2009, no pet).
    AUTHORITIES:
    Academy Corp. v. Interior Buildout & Turnkey Const. Inc., 
    21 S.W. 3
    rd 732 (Tex.
    App-Houston [14th Dist.] no pet. 2000).
    "Academy claims Turnkey did not present evidence of the second, fifth,
    and sixth factors; therefore, the evidence is legally insufficient to support
    13
    an award of attorney's fees. There is nothing in Perry Equip. Corp. to suggest
    that the eight factors are elements of proof, rather than guidelines which
    the factfinder "should consider when determining the reasonableness of a
    fee." See 
    id. see also
    Tex. Disciplinary R. Prof'l Conduct 1.04, reprinted in
    TEX. GOVT CODE ANNN., tit. 2, subtit. G app. A (Vernon 1998) (Tex.
    State Bar R. art. X, § 9) (listing "factors that may be considered in
    determining the reasonableness of a fee include, but not to the exclusion of
    other relevant factors")." (p742)
    Estate of Tyner, 
    292 S.W. 3RD
    179 (Tex. App. —Tyler, 2009, no pet)
    "To create a fact issue, the nonmovant's attorney must file an affidavit
    contesting the reasonableness of the movant's attorney's fee affidavit. 
    Id. To constitute
    proper summary judgment evidence, an affidavit must be made
    on personal knowledge, set forth facts which would be admissible in
    evidence, and show the affiant's competence. Tex.R. Civ. P. 166a(f). The
    allegations must be direct, unequivocal, and such that perjury is assignable.
    All Pharmaceutical, Inc. v. Boston, 
    986 S.W.2d 331
    , 338 (Tex.App.-Texarkana
    1999, no pet.). Thus, an affidavit filed by the movant's attorney that sets
    forth his qualifications, his opinion regarding reasonable attorney's fees,
    14
    and the basis for his opinion will be sufficient to support summary
    judgment, if uncontroverted. Basin Credit Consultants, Inc. V. Obregon, 
    2 S.W.3d 372
    , 373 (Tex.App.-San Antonio 1999, pet. denied). (p. 184)"
    While appellee may concede the legal proposition that the court may
    not take judicial notice of a reasonable fee if controverted, it is appellee's
    position that the affidavit of William Pemberton (CR 72-75) does not
    actually controvert the fee affidavit (CR57) accompanying the Motion for
    Summary judgment, rather, the instrument seems to simply be expressing
    an objection to the absence of elements, and does not state that the fee
    being requested is 'unreasonable".
    The affidavit of William Pemberton (CR 72-75) leaves out one
    important issue it does not state that in the opinion of William Pemberton,
    attorney, the attorneys fees set forth in the affidavit of Ronnie Horsley are
    unreasonable. (CR57). "The summary judgment affidavit of Ronnie
    Horsley in support of plaintiffs claim for attorney's fees does not set forth a
    reasonable amount of attorney's fees, because it does not contain all the
    elements required by RULE 1.04 of the TEXAS DISCIPLINARY RULES OF
    15
    PROFESSIONAL CONDUCT". Arthur Andersen v. Perry Equipment Corp.,
    
    945 S.W.2d 812
    (Tex. 1997).
    The court and Arthur Anderson and RULE 1.04 of the TEXAS
    DISCIPLINARY RULES OF PROFESSIONAL CONDUCT does not require
    submission of or consideration of all of the enumerated elements. The
    elements are simply suggested guidelines by which the court may
    determine a reasonable fee. ). Estate of Tyner, 
    292 S.W. 3RD
    179 (Tex. App. —
    Tyler, 2009, no pet) discusses the sufficiency of attorney's fee affidavits and
    the inapplicability of the "checklist".
    The affidavit of Ronnie Horsley (CR57) which accompanied the
    Motion for Summary Judgment set forth that the affiant was an attorney,
    duly sworn, licensed and familiar with the fees customarily charged by
    attorneys in the area. The affiant had practiced law since 1970 in the state of
    Texas and was retained by plaintiff on a contingency based on the amount
    of the debt to be collected. The affiant set out that his experience extended
    to handling numerous cases and based on the usual contingency
    arrangements of other attorneys $10,892.24 was a reasonable customary fee
    for investigating the case attempting to secure collection by amicable
    16
    means preparing and filing the petition filing a motion for summary
    judgment therein.
    Although the court did not take judicial notice of the fee, it could
    have since the affidavit of William Pemberton (CR 72-75) did not voice an
    opinion that the fees sought were unreasonable based on the attorneys
    experience, rather, it was based on the fact that the affidavit of Ronnie
    Horsley (CR57) did not set forth all of the eight elements
    Because the Pemberton affidavit did not set forth facts, rather it set
    forth an exception or objection, the trial court was not obliged to consider
    saying as raising an issue.
    VII. CONCLUSION
    In conclusion, appellee would show that the Summary Judgment
    evidence before the court established Plaintiff's entitlement to recover. The
    Appellant did not offer any further affidavits and those which were a part
    of the Motion to Transfer Venue were not offered in evidence in response
    to Appellee's Motion for Summary Judgment nor were they placed in
    evidence in connection with the Motion for New Trial. The Appellant
    failed to deny the sworn account adequately and its plea of payment was
    17
    insufficient. The court properly granted the Motion for Summary
    Judgment based on the evidence and the attorneys fees awarded were
    allowed by law and in accordance with the parties' credit agreement.
    The judgment of the trial court should be in all things affirmed.
    Respectfully submitted,
    LAW OFFICES OF RONNIE HORSLEY, P.C.
    Attorney for Plaintiff
    BY: /s/ Ronnie Horsley
    RONNIE HORSLEY
    P.O. Box 7017
    Tyler, Texas 75711
    Telephone: (903) 593-7314
    Facsimile: (903) 593-3450
    Email: horsleylaw@tyler.net
    Texas Bar Card No. 10014000
    18
    CERTIFICATE OF COMPLIANCE
    I do hereby certify that this document was produced on a computer
    using Microsoft Word and contains 3,237 words, as determined by the
    computer software's word-count function, excluding the sections of the
    document listed in TEXAS RULES OF APPELLATE PROCEDURE 9.4(i)(1)
    /s/ Ronnie Horsley
    RONNIE HORSLEY
    CERTIFICATE OF SERVICE
    I hereby certify that on the 18th day of December, 2015, a true and
    correct copy of the foregoing was mailed by certified mail, return receipt
    requested, and electronic service to the following:
    Jaclyn D. Patton                    email: jaclyn@txestateplarming.com
    Attorney at Law
    639 Heights Boulevard
    Houston, TX 77007
    /s/ Ronnie Horsley
    RONNIE HORSLEY
    19