Coward v. Gateway National Bank of Beaumont , 515 S.W.2d 129 ( 1974 )

On Motion for Rehearing

In the note, defendant agreed to pay a reasonable attorney’s fee in the event of default. Art. 2226, V.A.C.S., as amended says the amount prescribed in the State Bar Minimum Fee Schedule shall be prima facie evidence of a reasonable attorney’s fee. It also says in non-jury cases the court maytake judicial knbwledge of such schedule and of the contents of the case file in determining the amount of the attorney’s fees without the necessity of hearing further evidence.

The plain language of this amended statute covers both the amount and the reasonableness of the attorney’s fees and says the court does not have to hear any further evidence. No court in Texas, in any case we have found, in construing this amendment to Art. 2226 has come to the conclusion that a summary judgment case is not a “non-jury” case in the sense used in such statute. We do not believe such a construction would be logical as the stated purpose of Rule 166-A, Texas Rules of Civil Procedure, is to provide a means by which causes of actions or defenses thereto with no real merit are eliminated without the necessity and cost of judicial time required by long drawn-out trial. The obvious purpose of Art. 2226 is to make it possible for a litigant to recover an attorney’s fee in a summary judgment proceeding.

Art. 2226 does no more than make the minimum fee schedule prima facie evidence of the amount and reasonableness, and if the defendant had desired to raise a fact issue as to either of these, he could have done so by filing opposing affidavits as provided for in Rule 166-A.

This court is aware that Himes v. American Home Fence Co., 379 S.W.2d 290 (Tex.1964), was the law in Texas before Art. 2226 was amended in 1971, but a reasonable construction of such article demonstrates that the law was changed by such amendment. To interpret amended Art. 2226 to mean it has no application to summary judgment cases would result in it having little beneficial effectiveness, and the real purpose of Rule 166-A would be defeated.

Associate Justice Barron on the 14th Court of Civil Appeals in Houston placed such interpretation upon Art. 2226 in Duncan v. Butterowe, Inc., 474 S.W.2d 619 (Tex.Civ.App., Houston—14 Dist., 1971, no writ), despite the fact that the Chief Justice of that court in an article, “Texas Summary Judgment Practice” in 13 South Texas L.J. 1, 6 (1971), expressed this opinion :

“Some of the problems with reference to the recovery of attorney’s fees in summary judgment proceedings may have been solved by the recent amendment to Tex.Rev.Civ.Stat.Ann., Art. 2226.”

Justice Peden, of the 1st Court of Civil Appeals in Houston, came to a contrary conclusion in Superior Stationers Corp. v. Berol Corporation, 483 S.W.2d 857 (Tex.Civ.App., Houston—1st Dist., 1972, no writ), some six months after the Duncan case, supra. That court affirmed a summary judgment allowing attorney’s fees. Obviously, the Supreme Court of this state will have to resolve this question.

There are cases in the State of Texas holding our courts may not take “judicial notice” of certain facts in summary judgment cases, including: Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961); Boswell v. Handley, 397 S.W.2d 213 (Tex.1965), and Perkins v. Crittenden, 462 S.W.2d 565 (Tex.1970). However, it is noted that all of these cases were before the 1971 Amendment to Art. 2226, and more important, none involved the question of a court taking “judicial notice” of some fact which such court was specifically authorized to take by statute. This all brings us back to the primary question for determination, and that is whether or not a summary judgment is a “non-jury case” in the sense that term is used in Art. 2226. Placing this construction upon Art. 2226 as amended, gives a reasonable meaning to both the statute and Rule 166-A and makes it possible for the courts to attain the obvious intention of the Legislature.

Motion for rehearing overruled.