in the Interest of S.E.W., a Child. ( 2019 )

Opinion issued April 11, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00310-CV
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IN THE INTEREST OF S.E.W., A CHILD
On Appeal from the County Court at Law
Waller County, Texas
Trial Court Case No. 16-07-23814
MEMORANDUM OPINION
Appellant Karen George-Baunchand (Baunchand) intervened in a child
custody proceeding to recover her attorney’s fees and costs. The trial court granted
a default judgment in favor of Baunchand and awarded her $6,000 in attorney’s fees.
In three issues on appeal, Baunchand argues that the trial court erred by not awarding
her the full amount of attorney’s fees that she requested, and that trial court violated
her Fifth and Fourteenth Amendment rights by reducing the amount of attorney’s
fees. We affirm the trial court’s judgment.
Background
In July 2016, Mother hired Baunchand to represent her in a child custody
dispute. According to Baunchand, the child was visiting Father in Arizona for the
summer and, despite Mother’s and Father’s agreement that the child would only stay
in Arizona until mid-July, Father was refusing to return the child to Mother in
Houston. Baunchand was employed by the International Center for Justice (ICFJ), a
non-profit legal organization, when Mother retained her services. Among other
things, Baunchand filed an original petition, an amended petition, and two
applications for writs of habeas corpus during her representation.
On March 7, 2017, Baunchand filed a motion to withdraw as Mother’s counsel
because Mother was not communicating with her or paying her legal fees. On April
18, 2017, Baunchand and ICFJ filed a first amended petition in intervention seeking
to recover $18,000 in attorney’s fees and $80.00 in costs from Mother and Father.
In support of the motion, Baunchand attached her affidavit and two billing
statements that ICFJ had sent to Mother documenting the legal services that
Baunchand performed between July 1, 2016 and December 4, 2016. In her affidavit,
Baunchand averred that she regularly practiced immigration and family law in Texas
and was Mother’s attorney of record in the underlying Suit Affecting the Parent-
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Child Relationship (SAPCR). Baunchand stated in her affidavit that although her
normal and customary fees in such cases is $500 per hour, she reduced her rate to
$250 per hour based on Mother’s financial status. She further averred that she had
deducted time spent on phone calls and text messages, and was only seeking fees for
72 hours of work.
On June 16, 2017, the trial court held a hearing on Mother’s and Father’s
Agreed Order in this case and Baunchand’s request for attorney’s fees. The hearing
was attended by Father’s attorney, the child’s amicus attorney, and Baunchand.
Mother did not appear at the hearing.
Baunchand testified at the hearing in support of her request for $18,000 in
attorney’s fees. Specifically, Baunchand testified that Mother hired her in July 2016
and they executed a formal contract for services at that time. She handed the trial
judge the original contract during the hearing. The contract, however, was not
admitted into evidence during the hearing or attached to Baunchand’s affidavit.
Although Baunchand attached a copy of the purported agreement to her appellate
brief, we cannot consider it for purposes of her appeal because the document is not
included in the appellate record. See Samara v. Samara, 52 S.W.3d 455, 459 (Tex.
App.—Houston [1st Dist.] 2001, pet. denied) (holding appellate courts cannot
consider documents attached to briefs that do not appear in appellate record).
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Baunchand testified that although her normal and customary charge is $450
an hour,1 she reduced her rate to $250 an hour because Mother claimed to be
indigent. She testified that she spent approximately 94 to 112 hours on the case, and
that she reduced her time to 72 hours because of Mother’s financial status.2 “These
hours were reasonable and necessary and -- I charge less than the customary rate of
350, my rate was 250 an hour.3 And I reduced everything that I could.” She explained
that although Mother made unreasonable demands on her time, she did not charge
Mother for the time she spent responding to Mother’s excessive text messages or
late-night phone calls. She also did not charge Mother for copies or faxes.
Baunchand testified that Mother stopped making payments in November 2016
and stopped communicating with Baunchand in November or December 2016.
1
Baunchand had averred in her affidavit that her customary rate was $500 per hour
and she argues on appeal that $500 is her customary rate in cases like this one.
2
On appeal, Baunchand argues that Mother lied when she claimed that she was
indigent and that “[t]he final judgment failed to take [this fact] into account.”
Baunchand also attaches supporting documentation to her appellate brief. First,
Baunchand does not appear to have challenged Mother’s indigency claims in the
trial court or argued that the court should take Mother’s true financial status into
consideration when determining the amount of reasonable attorney’s fees in this
case. See generally Garcia v. Alvarez, 367 S.W.3d 784, 788 (Tex. App.—Houston
[14th Dist.] 2012, no pet.). Second, the documents attached to Baunchand’s brief
are not included in the appellate record and, therefore, we cannot consider them for
purposes of appeal. See Samara v. Samara, 52 S.W.3d 455, 459 (Tex. App.—
Houston [1st Dist.] 2001, pet. denied) (holding appellate courts cannot consider
documents attached to briefs that do not appear in appellate record).
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When the trial judge asked Father’s counsel “what the average ordinary fee per hour
is in Waller County for an attorney in a comparable matter, counsel responded, “My
guess would be around 350, 400. 300 to -- 300 to 400.”
4
Baunchand, however, continued to participate in the case and attended
approximately six hearings after December 2016 and a mediation because she was
still Mother’s attorney of record. Baunchand did not bill Mother for any of those
hours.
When the trial judge asked her about her relationship with ICFJ, Baunchand
told the court that she was working for ICFJ when Mother hired her in July 2016.
According to Baunchand, who was also on ICFJ’s board of directors, the non-profit
lost its 501(c)(3) tax status in August 2016 and she stopped working for them and
resigned her directorship in November or December 2016. When the trial judge
asked who paid her legal fees when she was employed by ICFJ, Baunchand told the
court, “the client is paying the nonprofit. If the client doesn’t pay the nonprofit, I do
not get paid.” Baunchand testified that she had not been paid by ICFJ for the services
she provided in this case. Baunchand also testified that she did not execute a new
contract with Mother after Baunchand left ICFJ because Baunchand believed that
the original July 2016 agreement was sufficient.
Baunchand also testified about some of the specific services she performed in
this case. Specifically, Baunchand testified that after her first meeting with Mother
on July 3, 2016, she reviewed the text messages and e-mails that Mother and Father
had exchanged, along with other documents that Mother had sent to her, and she
“prepared an emergency petition, which is a writ of habeas for return of the child.”
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The first ex parte hearing on Mother’s application for a writ of habeas corpus and
request for temporary orders was recessed to allow Mother to amend her application.
After the application was amended, the court reconvened the hearing and issued
temporary orders directing Father to return the child. Baunchand stated that after she
filed the writ she “also filed an original SAPCR [on July 12th] at the request of the
visiting judge.” Baunchand billed Mother for two hours for each hearing.
At that point, Father’s counsel questioned Baunchand on voir dire.
MR. SHORT: Is it your testimony under oath, ma’am, that a judge
advised you what to do as a lawyer about filing SAPCRs and that
sort of thing? Is that what you’re telling this -- His Honor?
MS. BAUNCHAND: A visiting judge gave me some instructions
concerning the writ and also the SAPCR.
MR. SHORT: Visiting judge instructed you [that] you had the wrong
pleadings, right?
MS. BAUNCHAND: She did not.
Baunchand also billed Mother for the six hours she spent preparing and filing
a second writ of habeas corpus on July 20th. The judge asked Baunchand, “And it
took six hours to repeat the information that was in the first habeas corpus into
another habeas corpus?” Baunchand responded, “The [visiting] judge struck through
some of the first habeas corpus and gave me specific instructions concerning the
second one.”
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Father’s counsel also challenged the necessity of the writs and told the trial
court that Baunchand had “started the case by sending kidnapping allegations to
[Father’s] NFL team” and “so a huge amount of the time and effort in this was as a
result of what I believe to be Rule 13 sanctionable actions.” Father’s counsel argued
that:
A simple filing of a petition to begin this suit with an hour’s billing and
a 106 is -- would have cost virtually nothing instead of suggesting that
you needed to go through all this drama. And then from a nonprofit
organization, which makes it even worse, Judge. I can’t imagine that
attorney’s fees would be over 3 or $400.
The trial judge noted that the contract Baunchand had handed him set the minimum
fee in this case at $20,000.
Baunchand denied making kidnapping allegations and testified that her
statements were based on the text messages between Mother and Father that Mother
had provided to Baunchand. Baunchand testified that she only filed the writs because
Father was refusing to return the child. The trial judge disagreed with Baunchand’s
characterization of the evidence and noted that he had reviewed the text messages
and the message “did not say that [Father] was not going to return the child.”
Baunchand also testified that she “attended numerous hearings concerning
this case” and stated that there were “quite a few continuances” because Father was
not present at any court hearings, despite assurances that he would attend at least
two of the hearings, and his counsel filed numerous motions for continuance. Among
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other charges, Mother was billed four hours for a hearing on child support on August
18, 2016 and four hours for another hearing on September 3, 2016. Baunchand
explained that the August 18, 2016 hearing lasted for four hours because Mother was
late and there were questions about whether she had been given notice of the hearing.
Father’s counsel questioned the necessity of a hearing on child support
because the parties had agreed that Father would pay $1,700 per month in child
support. He also told the trial court that some of the hearings had to be continued or
reset because Baunchand had attempted to serve Father incorrectly and had failed to
give proper notice.
Baunchand’s paralegal also testified about the numerous text messages and
phone calls that Mother made to Baunchand that Mother was not billed for.
At the end of the hearing, the trial court accepted Mother’s and Father’s
Agreed Order in Suit Affecting Parent-Child Relationship. The trial court further
stated that after reviewing and hearing Baunchand’s testimony regarding her request
for attorney’s fees, the court ordered Mother to pay Baunchand $6,000 in attorney’s
fees, i.e., $7,500 minus the $1,500 that Mother had already paid to Baunchand.
Attorney’s Fees
In her first and second issues, Baunchand argues that the trial court erred by
not awarding her $18,000 in attorney’s fees, which is the full amount she requested.
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A. Standard of Review
Baunchand argues on appeal that she has a right to recover her attorney’s fees
in this case pursuant to section 106 of the Texas Family Code and Chapter 38 of the
Texas Civil Practice and Remedies Code.4 See TEX. FAM. CODE § 106.002(a)
(authorizing award of reasonable attorney’s fees in SAPCR proceeding); TEX. CIV.
PRAC. & REM. CODE § 38.001(8) (authorizing award of attorney’s fees if claim is for
“an oral or written contract”). We review the amount of an award of attorney’s fees
under both Chapter 38 and section 106 for abuse of discretion. See Guimaraes v.
Brann, 562 S.W.3d 521, 551 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (stating
trial courts have broad discretion to award reasonable attorney’s fees and expenses
in SAPCRs); see also Siam v. Mountain Vista Builders, 544 S.W.3d 504, 510 (Tex.
App.—El Paso 2018, no pet.) (stating trial court has discretion to determine amount
of reasonable and necessary attorney’s fees under Chapter 38).
As the party seeking fees, Baunchand bore the burden to show her attorney’s
fees were reasonable and necessary. See Garcia v. Gomez, 319 S.W.3d 638, 646
(Tex. 2010). The reasonableness of attorney’s fees is a question of fact and an
appellate court may not substitute its judgment for that of the factfinder. Smith v.
4
Although Baunchand’s appellate brief focuses almost exclusively on her right to
recover attorney’s fees under Chapter 38, she does not appear to have raised this
point in the trial court. Nevertheless, we will assume without deciding for purposes
of this appeal that Baunchand is entitled to recover her fees under Chapter 38.
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Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009). A reasonable fee is one
that is not excessive or extreme, but rather moderate or fair. Garcia, 319 S.W.3d at
642. A request for attorney’s fees may be found unreasonable even if it is supported
by uncontradicted evidence. See Ragsdale v. Progressive Voters League, 801
S.W.2d 880, 882 (Tex. 1990).
Factors that trial courts should consider when determining the reasonableness
of a fee include: the time, labor and skill required to properly perform the legal
service; the novelty and difficulty of the questions involved; the customary fees
charged in the local legal community for similar legal services; the amount involved
and the results obtained; the nature and length of the professional relationship with
the client; and the experience, reputation and ability of the lawyer performing the
services. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818
(Tex. 1997). “Trial judges can [also] draw on their common knowledge and
experience as lawyers and as judges in considering the testimony, the record, and
the amount in controversy in determining attorney’s fees.” McMahon v. Zimmerman,
433 S.W.3d 680, 693 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (quoting
Protect Envtl. Servs. v. Norco Corp., 403 S.W.3d 532, 543 (Tex. App.—El Paso
2013, pet. denied)).
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B. Analysis
Baunchand argues that the trial court erred by not awarding her the full
amount of attorney’s fees because her “hourly rate was half the going rate in the
community/locality” and, therefore, her “attorney fees and cost were more than
reasonable.” The amount of an attorney’s rate, however, is only one factor that a
court may consider when evaluating the reasonableness and necessity of attorney’s
fees in a case.
Here, Baunchand requested $18,000 for six months of work in a child custody
dispute. Although Baunchand presented evidence in support of her request, the trial
court was not required to take her testimony at face value and award her all the
attorney’s fees she was requesting. See Ragsdale, 801 S.W.2d at 882 (stating that
request for attorney’s fees may be found unreasonable even if it is supported by
uncontradicted evidence).
The hearing testimony raises questions about the reasonableness and necessity
of some of the legal services that Baunchand provided to Mother, including the
fourteen hours she spent preparing two writs of habeas corpus, and the hearings held
on the writs. The record reflects that Baunchand began the case by filing an
application for writ of habeas corpus, but the writ needed to be amended before the
court considered it. After Baunchand filed the amended writ, she “also filed an
original SAPCR at the request of the visiting judge.” The visiting judge also gave
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Baunchand specific instructions with regard to her second writ. Father’s counsel
disputed that the writs were necessary and argued Baunchand should have filed a
SAPCR petition first, which “would have cost virtually nothing.” Although
Baunchand argued that the writs were necessary because Father was refusing to
return the child, the trial judge disagreed with her assessment of the evidence and
noted that he had reviewed the text messages and the messages “did not say that
[Father] was not going to return the child.” The trial judge also expressed concern
regarding the amount of time Mother was charged for Baunchand’s preparation of
the second writ (“And it took six hours to repeat the information that was in the first
habeas corpus into another habeas corpus?”) and the amount of time Mother was
charged for various hearings.
Baunchand requested $18,000 in attorney’s fees for six months’ work in this
child custody dispute; the trial court awarded her $6,000 in fees. Considering the
evidence presented during the hearing that contradicts or undermines Baunchand’s
testimony regarding the reasonableness and necessity of her fees, we conclude the
trial court’s award of $6,000 in attorney’s fees to Baunchand was not arbitrary or
unreasonable or without reference to guiding principles.
We overrule Baunchand’s first and second issues.
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Constitutional Violations
In her third issue, Baunchand argues that the trial court violated her Fifth and
Fourteenth Amendment rights by reducing the amount of attorney’s fees.
Baunchand, however, did not raise her constitutional claims below. To preserve a
complaint for appellate review, a party generally must present it to the trial court by
timely request, motion, or objection, stating the specific grounds, and obtain a ruling.
TEX. R. APP. P. 33.1(a). This rule applies to constitutional claims. See In re L.M.I.,
119 S.W.3d 707, 710–11 (Tex. 2003); Shaw v. County of Dallas, 251 S.W.3d 165,
174 (Tex. App.—Dallas 2008, pet. denied). Because Baunchand did not raise this
issue below, it presents nothing for our review. See In re L.M.I., 119 S.W.3d at 710–
11; Shaw, 251 S.W.3d at 174.
We overrule Baunchand’s third issue.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
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