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Richard L. Pavlow v. Susan G. Jensen ( 2005 )


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  • Affirmed as Modified and Memorandum Opinion filed December 8, 2005

    Affirmed as Modified and Memorandum Opinion filed December 8, 2005.

     

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-04-00750-CV

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    RICHARD L. PAVLOW, Appellant

     

    V.

     

    SUSAN G. JENSEN, Appellee

     

      

     

    On Appeal from the County Court at Law No. 2

    Galveston County, Texas

    Trial Court Cause No. 51194

     

      

     

    M E M O R A N D U M   O P I N I O N

    Appellant Richard L. Pavlow appeals the trial court=s grant of summary judgment in appellee Susan G. Jensen=s favor. In the trial court, Jensen moved for summary judgment and sought attorney=s fees, asserting that she made a legal tender to Pavlow to satisfy a judgment he had obtained against her, and that Pavlow refused that tender.  In five issues, Pavlow contends the trial court erred because Jensen did not prove, as a matter of law, that she made a legal tender to him, and because the trial court improperly awarded Jensen her attorney=s fees.  We conditionally affirm the judgment as modified upon remittitur of a portion of the attorney=s fees awarded.

    I.        Factual Background

    This appeal arose from Jensen=s attempt to satisfy a previous judgment against her. In the original suit, Pavlow obtained a judgment against Jensen, who then hired a lawyer to assist her in satisfying the judgment. 

    In the first of two attempts to satisfy the judgment, Jensen=s attorney sent a letter to Pavlow, advising him that Jensen had deposited money into the law firm=s trust account.  The letter informed Pavlow that he could obtain a check from the law firm by coming to the office and signing a release.  Pavlow refused to do so.  According to Jensen, in an e-mail response to Jensen=s attorney, Pavlow stated: AI don=t care about your instructions, internal policies, or customary practices.@[1]  Pavlow also stated that he would not sign a release unless Jensen=s attorney mailed the check to him at his post office box and, even then, only after the check had cleared.  Some time after the first attempt to pay the judgment failed, Pavlow filed abstracts of judgment against real property Jensen owned in Galveston County and Dallas County.

    In the second attempt to satisfy the judgment, Jensen=s attorney sent another letter to Pavlow.  This letter informed Pavlow that he could obtain a certified check from the clerk of the court in which Pavlow filed his suit if he executed a release. Again, Pavlow refused.

    II.       Procedural Background

    After two failed attempts to satisfy the judgment, Jensen filed suit against Pavlow. She sought an injunction to prevent Pavlow from filing any abstracts of judgment against her property and a declaration that abstracts of judgments Pavlow did file were Anull and void and of no effect.@  She also sought recovery of the attorney=s fees she had incurred in her attempts to satisfy the previous judgment.  Pavlow answered with a general denial.

    Jensen moved for summary judgment, which the trial court granted.  The trial court=s judgment stated that the trial court found that Jensen tendered the full amount of the judgment due to Pavlow, and that Pavlow refused the tender.  The court also found that Jensen was entitled to recover her attorney=s fees and costs.  Finally, the court declared that the abstracts of judgment were void and of no effect.

    On appeal, Pavlow raises five issues for our review.  In his first three issues, Pavlow argues that Jensen did not make a legal tender to him because: 1) Jensen did not relinquish possession of or produce the funds to him; 2) Jensen required him to travel to collect the funds; and 3) Jensen did not tender Amoney or cash.@  In his fourth issue, he argues that the trial court should not have granted summary judgment awarding Jensen her attorney=s fees because his controverting affidavit raised a fact issue on the reasonableness of those fees.  In his final issue, Pavlow asserts that no evidence supports the amount of attorney=s fees the trial court awarded.  Pavlow does not appeal that portion of the court=s judgment ordering that the abstracts of judgment are void and of no effect.

    III.      Legal Tender

    Jensen, as the party asserting a valid tender, had the burden to prove that she made a legal tender to Pavlow.  See Church v. Rodriguez, 767 S.W.2d 898, 901 (Tex. App.CCorpus Christi 1989, no writ) (citing cases); Rozelle v. First Nat=l Bank in Dallas, 535 S.W.2d 768, 771 (Tex. Civ. App.CWaco 1976, writ ref=d n.r.e.) (citing cases).  A tender is Aan unconditional offer . . . to pay another, in current coin of the realm, a sum not less in amount than that due on a specified debt or obligation.@  Baucum v. Great Am. Ins. Co. of New York, 370 S.W.2d 863, 866 (Tex. 1963); Fillion v. David Silvers Co., 709 S.W.2d 240, 246 (Tex. App.CHouston [14th Dist.] 1986, writ ref=d n.r.e.). To constitute a Avalid and legal tender,@ Jensen must have Arelinquish[ed] possession . . . for a sufficient time and under such circumstances as to enable [Pavlow], without special effort on his part, to acquire its possession.@  Baucum, 370 S.W.2d at 866 (citing Universal Credit Co. v. Cole, 146 S.W.2d 222, 227 (Tex. Civ. App.CAmarillo 1940, no writ)).  A[W]hen a tender is refused on other grounds one will not be heard later to complain of the medium of payment.@  Id.

    A.      Standard of Review

    This is an appeal from a summary judgment.  We apply a well-established standard of review.  Jensen, as the movant, has the burden to show that there are no genuine issues of material fact, and that she is entitled to judgment as a matter of law. See KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  We take as true all evidence favorable to Pavlow, the nonmovant, and we indulge every inference in his favor.  See id.  In each of his first three issues, Pavlow asserts that the trial court erred in granting summary judgment in Jensen=s favor because Jensen has not established that she was entitled to judgment as a matter of law.

    In his first issue, Pavlow argues that Jensen did not prove that she relinquished the funds.  In his second issue, Pavlow asserts that Jensen did not prove that her attempts to satisfy the judgment were a legal tender because Pavlow was required to travel before he could collect the funds.  In his third issue, Pavlow contends that Jensen did not prove that she made a legal tender because she did not tender Amoney or cash@ to satisfy the judgment.  Pavlow does not assert that Jensen tendered the wrong amount.

    B.      Issue One: Jensen=s Relinquishment of the Funds to Pavlow

    Pavlow initially asserts that, despite Jensen=s two attempts to satisfy the judgment, Ait is undisputed@ that Jensen never relinquished the funds to him.  Pavlow claims that Jensen never relinquished the funds because, at all times, the funds remained with someone who was acting as Jensen=s agent.  With respect to the first attempt, Pavlow suggests that Jensen never relinquished the funds to him because Jensen=s attorney, acting as her agent, maintained possession and control of the funds.  See Baucum, 370 S.W.2d at 866 (stating that a valid and legal tender requires the tenderer to relinquish possession).  And with respect to the second attempt, Pavlow argues that turning the funds over to the court clerk did not constitute a relinquishment of the funds to him because the court clerk was acting as Jensen=s agent, and not in the clerk=s official capacity, when the clerk agreed to deliver the check to Pavlow after he signed a release.  See id. (stating that delivery of the check to the district clerk, acting as the agent of the tenderer to deliver the check rather than in an official capacity, was not a relinquishment of all control); Dunn v. Ligon, 430 S.W.2d 704, 708 (Tex. Civ. App.CCorpus Christi 1968, no writ) (holding there was no actual tender of payments because district clerk was not the Aduly authorized agent@ of the insured to receive payments on his behalf).  Pavlow argues that the court=s clerk was not authorized to act as his agent and, therefore, could not accept the funds on his behalf.

    However, we find the circumstances of this case distinguishable from those in Baucum and Dunn.  In Baucum, the insured obtained a judgment against his insurance company. The insurance policy at issue authorized only three methods by which the insurance company could stop the running of interest on the insured=s judgment: 1) by payment; 2) by tender; or 3) by deposit into the registry of the court.  Baucum, 370 S.W.2d at 866.  When the parties contractually agreed that a judgment could only be satisfied in three particular ways, the Texas Supreme Court stated:

    Where the contract authorizes payment of tender at a certain place . . . the result of tender of payment there made is the same as if an actual tender had been made to the payee. . . . Implicit in that decision therefore is the obligation to make the tender to [the insured] or his attorneys in person since [the insurance company] was not authorized to do otherwise.

    Id. at 867.  The Baucum court also explained that A[t]he principal reason why the delivery of the check to the Clerk falls short of a compliance with the terms of the policy, is that it has never been actually tendered to Baucum or his attorneys.@  Id. at 866.  In Dunn, the court held there was no actual tender when the appellant rejected an insurer=s attempts to pay a judgment by checks to appellant and appellant=s attorneys, as well as to the district clerk, because the appellant consistently insisted on being paid in cash.  Dunn, 430 S.W.2d at 707B08.

    In this case, the judgment did not specify a particular place for payment. Therefore, under the common law rule, Jensen was required to seek out Pavlow to make a tender to him if he could be found in the exercise of reasonable diligence.  See Baucum, 370 S.W.2d at 867; Vilbig v. Trumble Steel Erectors, 464 S.W.2d 676, 677 (Tex. Civ. App.CAmarillo 1970, no writ) (citing Baucum, 370 S.W.2d at 867).  In these circumstances, however, Jensen could do only so much to seek out Pavlow in the exercise of reasonable diligence, because Pavlow himself offered no avenue for personal contact for a tender to take place. Both times Jensen=s attorney tried to pay the judgment, the only way Pavlow could be contacted was by e-mail or post office box, and the record does not reflect that Pavlow had an attorney who could have been contacted alternatively.  Furthermore, Pavlow had placed liens on Jensen=s property, and so she was entitled to obtain a release. But, because Pavlow was apparently acting pro se and had no address at which he could be physically found, there was no way for Jensen to obtain the release she sought when the judgment was paid, because there was no place where the necessary interaction with Pavlow could occur so that the payment could be exchanged for the release.

    Under these circumstances, Jensen=s attempts to pay the judgment were reasonable efforts to relinquish possession of the funds for a sufficient time and under such circumstances as to enable Pavlow, without special effort on his part, to acquire them. Cf. Baucum, 370 S.W.2d at 866 (noting appellant complained that district clerk was acting as appellee=s agent at a different city from either appellant=s residence or his attorneys= offices). Indeed, Pavlow himself does not suggest any alternative address at which an exchange could have been made, or that he had an authorized agent who could have received the funds for him.  Pavlow=s complaint in this issue is that Jensen did not search him out and place the funds in his hands, but Pavlow provided Jensen no reasonable opportunity to do this. 


    We therefore overrule Pavlow=s first issue.

    C.      Issue Two:  Requirement that Pavlow Travel

    In Pavlow=s second issue, he contends that Jensen did not prove that she made a legal tender because her efforts to satisfy the judgment required that he travel, either to Jensen=s attorney=s office or to the trial court clerk=s office.

    As discussed above, the only way Jensen was able to communicate with Pavlow about paying the judgment was through mail and e-mail, and Pavlow had no attorney or other agent to receive the payment for him.  In order to make the payment and obtain the release, Jensen asked Pavlow to pick up the check at his convenience, either from her attorney=s office or from the clerk of the court in which Pavlow originally filed suit.  A legal tender requires that Jensen Aenable [Pavlow], without special effort on his part,@ to Aacquire its possession.@  Baucum, 370 S.W.2d at 866.  We conclude that, in the absence of any alternative that would accomplish the concurrent goals of paying Pavlow and obtaining the release from him, requiring Pavlow to travel to Jensen=s attorney=s office or to the same courthouse where he filed his lawsuit in order to pick up Jensen=s check did not require special effort on his part.

    We therefore overrule Pavlow=s second issue.

    D.      Issue Three:  Requirement of AMoney or Cash@

    In his third issue, Pavlow asserts that Jensen failed to provide a legal tender to him because she provided him with a check rather than money.  We reject this contention. 


    A party cannot complain later about the form of tender when that complaint is not made initially.  See Baucum, 370 S.W.2d at 866; Dunn, 430 S.W.2d at 708.  When Jensen=s attorney initially offered a check from the firm=s trust account, Pavlow rejected this offer.  At that time, Pavlow did not object to being paid by a check, nor did he reject the offer without giving a reason.  See Baucum, 370 S.W.2d at 866, 867 (stating that, in order to complain about the medium of tender, that objection must be made initially, but also emphasizing that silence does not constitute a waiver of the elements of a valid tender).  Instead, Pavlow objected to the simultaneous exchange of his signature on a release for the check.  In response to Jensen=s motion for summary judgment, Pavlow swore in an affidavit that he would have accepted a check, but would not have signed the release until after the check cleared his bank.  When Jensen=s attorney later left a cashier=s check with the court clerk, Pavlow again refused to accept the check.  Pavlow did not object to the form of payment, but rather to the location where Jensen left the check (at the courthouse), and the person with whom Jensen left it (the court=s clerk). 

    We conclude that Pavlow=s initial complaint was not about the medium of Jensen=s tender.  Therefore, he cannot complain about Jensen=s decision to pay him by check, rather than money, on appeal. See Baucum, 370 S.W.2d at 866; Littlejohn v. Johnson, 332 S.W.2d 439, 441 (Tex. Civ. App.CWaco 1960, no writ) (holding that appellant waived any objection to medium of tender when initial objection was not to payment by check, but to inclusion of his attorney=s name on the check); Bayless v. Strahan, 182 S.W.2d 262, 264 (Tex. Civ. App.CAmarillo 1944, writ ref=d w.o.m.) (holding that appellant waived strict legal tender when his initial rejection was based upon the requirement that he prepare and execute a release). 

    Moreover, the second time Jensen attempted to pay Pavlow, she did so by cashier=s check.  A cashier=s check is the functional equivalent of cash.  See Humble Nat=l Bank v. DCV, Inc., 933 S.W.2d 224, 238 (Tex. App.CHouston [14th Dist.] 1996, writ denied); Angelo v. Chem. Bank and Trust Co., 529 S.W.2d 783, 786 (Tex. Civ. App.CDallas 1975, writ dism=d).  When Jensen tendered a cashier=s check, she was in effect tendering cash.

    We therefore overrule Pavlow=s third issue.

    IV.      Attorney=s Fees

    In his remaining two issues, Pavlow challenges the trial court=s award of attorney=s fees to Jensen.  In his fourth point of error, Pavlow asserts that Jensen=s attorney=s fees were not reasonable, and in his fifth, that no evidence supports the amount of attorney=s fees that the trial court awarded. 


    A.      Standard of Review

    We apply the standard of review to an award of attorney=s fees under the Declaratory Judgments Act as the Texas Supreme Court described it in Bocquet v. Herring:

    In sum, then, the Declaratory Judgments Act entrusts attorney fee awards to the trial court=s sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law.  It is an abuse of discretion for a trial court to rule arbitrarily, unreasonably, or without regard to guiding legal principles . . . or to rule without supporting evidence . . . . Therefore, in reviewing an attorney fee award under the Act, the court of appeals must determine whether the trial court abused its discretion by awarding fees when there was insufficient evidence that the fees were reasonable and necessary, or when the award was inequitable or unjust.

    972 S.W.2d 19, 21 (Tex. 1998).  Because Pavlow challenges the reasonableness of the fees, and the evidence to support the award, we apply an abuse-of-discretion standard.[2]  See id.

    B.      Evidence of Attorney=s Fees

    Jensen=s motion for summary judgment contained one attorney=s affidavit and another attorney=s verification.  In the affidavit, attorney McConnico stated that he was Jensen=s attorney, and that he was licensed to practice law in Texas.  He also refers to an attached bill for services rendered, which the parties agree reflected the amount of $4,429.00.[3]  In the verification, attorney Qualline stated that he was licensed to practice law in Texas, and was board certified.  Additionally, he stated that he had reviewed the legal work done by attorney McConnico, as well as attorney McConnico=s bill.  He concluded that, in his opinion, the services were necessary and the charges were reasonable. 

    Pavlow=s response to Jensen=s motion for summary judgment contained an attorney=s controverting affidavit.  In its entirety, this affidavit stated:

    I, Keith Gross, am a capable person to make this affidavit. I have never been convicted of a felony in Texas or in any other state.  I am licensed to practice law in the state of Texas.  I am in good standing with the State Bar.  I have reviewed the Plaintiff=s pleadings and request for attorney[=]s fees.  The attorney[=]s fees requested are not reasonable nor [sic] necessary.

    Jensen specially excepted to this affidavit on the ground that attorney Gross=s statements were not competent summary judgment evidence. Jensen asserted that the statements were Amerely legal conclusions.@  Jensen also objected to attorney Gross=s failure to state his Aqualifications, the facts upon which his opinion is based and the reasoning on which opinions are based.@ The record does not reflect the trial court=s ruling, if any, on Jensen=s special exceptions.[4] 

    In its final judgment, the trial court awarded Jensen attorney=s fees in the amount of $7,366.50.[5] 

     

    C.      Issue Four:  Reasonableness of Attorney=s Fees

    In his fourth issue on appeal, Pavlow asserts that the trial court erred in granting Jensen=s motion for summary judgment because attorney Gross=s affidavit raised a material issue of fact on the reasonableness of Jensen=s attorney=s fees.  We disagree.

    To be competent summary judgment evidence, an affidavit must be based on personal knowledge, set forth facts that would be admissible in evidence, and affirmatively show the affiant=s competence to testify as to the matters stated therein. Tex. R. Civ. P. 166a(f).  Affidavits containing conclusory statements that are unsupported by facts are not competent summary judgment evidence.  Skelton v. Comm=n for Lawyer Discipline, 56 S.W.3d 687, 692 (Tex. App.CHouston [14th Dist.] 2001, no pet.); see also Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.CDallas 2004, pet. denied) (AA conclusory statement is one that does not provide the underlying facts to support the conclusion.@) (citing Choctaw Props., L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 242 (Tex. App.CWaco 2003, no pet)).

    Pavlow=s controverting affidavit was not competent summary judgment evidence because it contained no factual support for attorney Gross=s opinion that Jensen=s attorney=s fees were unreasonable.[6]  See Tex. R. Civ. P. 166a(f); Skelton, 56 S.W.3d at 692; see also Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984) (AA legal conclusion in an affidavit is insufficient to raise an issue of fact in response to a motion for summary judgment. . . .@) (citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984)); Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373 (Tex. App.CSan Antonio 1999, pet. denied) (AAn affidavit filed by non-movant=s counsel that simply criticizes the fees sought by the movant as unreasonable without setting forth the affiant=s qualifications or the basis for his opinion will not be sufficient to defeat summary judgment.@) (citing Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 469 (Tex. App.CSan Antonio 1988, no writ)); Houston v. Houston, No. 13-02-00142-CV, 2004 WL 351850, *5 (Tex. App.CCorpus Christi Feb. 26, 2004, no pet.) (not designated for publication) (noting that non-movant=s attorney=s affidavit did not state that movant=s attorney=s hourly fee was unreasonable, nor identify unnecessary billable time, and stating affidavit was conclusory) (citing Karen Corp. v. Burlington N. & Sante Fe R.R. Co., 107 S.W.3d 118, 126 (Tex. App.CFort Worth 2003, pet. denied)).   Pavlow did not produce any other summary judgment evidence on attorney=s fees. 

    We therefore overrule Pavlow=s fourth issue.

    D.      Issue Five:  Amount of Attorney=s Fees

    In his final issue, Pavlow asserts that the evidence does not support the amount of attorney=s fees that the trial court awarded.  In her briefing to this Court, Jensen has not disagreed.[7]  The only evidence apparently adducedCJensen=s attorney=s bill for services renderedCreflects that his fees were $4,429.00.  We have reviewed the entire record, but find no evidence to support the trial court=s award of $7,366.50.  Accordingly, we find that the evidence is insufficient, and sustain Pavlow=s fifth issue.  Our Texas Supreme Court addressed this situation in Bocquet, stating: A[I]f the [appellate] court finds the evidence insufficient, it may affirm conditioned on a remittitur or remand for further proceedings.@  Bocquet, 972 S.W.2d at 21.


    If within fifteen days of the date of this opinion, Jensen files a remittitur in this Court with respect to the excess $2,937.50, we will reform the trial court=s judgment accordingly and, as reformed, affirm the judgment.  See id.; Pullman v. Brill, Brooks, Powell, & Yount, 766 S.W.2d 527, 530 (Tex. App.CHouston [14th Dist.] 1988, no writ) (conditioning affirmance of judgment, as reformed, upon appellee=s remittitur of attorney=s fees that were not supported by the evidence); Reeves v. Ultra Realty Co., No. 05-99-01144-CV, 2000 WL 1015970, *12 (Tex. App.CDallas July 25, 2000, no pet.) (not designated for publication) (same). 

    If Jensen does not file the suggested remittitur, we will reverse the portion of the judgment awarding attorney=s fees and remand that portion of the case to the trial court to make an appropriate determination of attorney=s fees. See Bocquet, 972 S.W.2d at 21 (stating that, if the evidence does not support the attorney=s fee award, then the appellate court may remand the case to the trial court for further proceedings); Pullman, 766 S.W.2d at 530 (stating that the court would reverse the portion of the judgment awarding attorney=s fees not supported by the evidence if suggestion of remittitur was not followed); Reeves, 2000 WL 1015970, at *12 (same); see Tex. R. App. P. 46.3.

    V.      Conclusion

    The judgment of the trial court is affirmed on condition of remittitur as to attorney=s fees.

     

     

    /s/      Wanda McKee Fowler

    Justice

     

     

    Judgment rendered and Memorandum Opinion filed December 8, 2005.

    Panel consists of Justices Fowler, Frost, and Guzman.


    [1]  The clerk=s record of Jensen=s motion for summary judgment, which is the subject of this appeal, does not contain the exhibits to the motion.  This Court ordered the Galveston County District Clerk to file a supplemental clerk=s record containing the exhibits, or, if the omitted exhibits were not a part of the file, to provide a certified statement to that effect.  In response, the county clerk provided a statement that the exhibits were not attached to the motion for summary judgment that was filed, but that exhibits were attached to the plaintiff=s original petition, which was a part of the clerk=s file.  Some of the exhibits referenced in Jensen=s motion do appear to correspond with the exhibits attached to her petition, but they do not reflect the same exhibit numbers; other exhibits referenced in the motion are not attached to the petition, including a copy of Pavlow=s alleged e-mail response.  However, Pavlow does not complain that the exhibits are not in the record or otherwise dispute the evidence (with the exception of Jensen=s evidence of attorney=s fees, which we address separately); therefore, we will address Pavlow=s issues as he presents them.

    [2]  We acknowledge this Court=s statement in Rasmusson, a fraud and breach-of-contract case, in which we noted the lack of authority for applying an abuse-of-discretion standard in the summary judgment context.  Rasmusson v. LBC PetroUnited, Inc., 124 S.W.3d 283, 289 (Tex. App.CHouston [14th Dist.] 2003, pet. denied).  However, that case did not address the appropriate standard of review to apply to an award of attorney=s fees under the Declaratory Judgments ActCwhich is the precise issue that the Texas Supreme Court addressed in Bocquet.  See id. at 284B86 (describing case=s procedural posture as an appeal from a summary judgment in a claim for attorney=s fees that arose from fraud and breach of contract actions).  Because the Texas Supreme Court has instructed appellate courts on the appropriate standard of review for attorney=s fees awarded under the Declaratory Judgments Act, we will apply that standard.  See Bocquet, 972 S.W.2d at 21.  Even if we applied the usual summary judgment standard of review to this case, we would reach the same conclusion: in the absence of competent summary judgment proof by Pavlow, Jensen established her entitlement to attorney=s fees in the amount of $4,429.00 as a matter of law, but did not establish, as a matter of law, her entitlement to attorney=s fees in the amount of $7,366.50.

    [3]  The record does not contain the bill for services submitted by Jensen=s attorney, but Pavlow acknowledges that Jensen sought attorney=s fees in the amount of $4,429.00.  Moreover, in his prayer for relief, Pavlow does not contend that the evidence is insufficient to support any award of attorney=s fees; instead, he requests that, if this Court affirms the trial court on the issues of legal tender and the reasonableness of the attorney=s fees, the court reform the judgment to reflect the amount of $4,429.00.

    [4]  Jensen=s objection that attorney Gross=s affidavit is conclusory was an objection to the affidavit=s substance; as such, the lack of a ruling does not preclude us from addressing this contention on appeal.  See Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.CHouston [14th Dist.] 2000, no pet.).

    [5]  This is the same amount that Jensen requested in her First Amended Original Petition.

    [6]  We distinguish this situation from Owen Electric Supply, Inc. v. Brite Day Constr., Inc., 821 S.W.2d 283 (Tex. App.CHouston [1st Dist.] 1991, writ denied), upon which Pavlow relies.  In that case, the court acknowledged that a non-movant=s attorney=s affidavit contesting the reasonableness of the movant=s attorney=s fees created a fact issue.  Id. at 288 (citing Tesoro Petroleum Corp. v. Coastal Refining & Marketing, Inc., 754 S.W.2d 764, 767 (Tex. App.CHouston [1st Dist.] 1986, no writ)).  However, in that case, the attorneys= affidavits only addressed the reasonableness of their own fees, and not any alleged unreasonableness of the opposing party=s attorney=s fees.  Id.  We also distinguish this case from cases like Tesoro,  754 S.W.2d at 766.  In that case, the non-movant=s attorney=s affidavit supported his conclusion that the movant=s attorney=s fees were unreasonable because he stated that he had been personally involved in the defense of the case, and that the movant=s attorney had not itemized the bill to reflect the services performed, the hours expended, nor the hourly rate.   Id.  In this case, Pavlow=s attorney provides no facts to support his conclusion that Jensen=s attorney=s fees were unreasonable.

    [7]  Jensen=s briefing addresses only the conclusory nature of Pavlow=s controverting affidavit, suggesting that the trial court did not err in finding that Jensen=s requested attorney=s fees were reasonable.