Jerry Spence D/B/A Big Country Irrigation v. Mark Hadley and Virginia Reger Morton, Trustee of the Virginia Reger Morton Revocable Living Trust ( 2021 )

Opinion filed October 28, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00389-CV
__________
JERRY SPENCE D/B/A BIG COUNTRY IRRIGATION, Appellant
V.
MARK HADLEY AND VIRGINIA REGER MORTON,
TRUSTEE OF THE VIRGINIA REGER MORTON
REVOCABLE LIVING TRUST, Appellees
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 024543
MEMORANDUM OPINION
This is a restricted appeal from an “Order Granting Summary Motion to
Remove Invalid Lien.” The motion upon which this order was based was limited in
scope—it simply sought to remove a lien that had been filed in the Jones County
property records. The hearing on the motion only addressed the limited relief that
had been requested in the motion. But the order granting the motion, that was
prepared by Appellees’ attorney, granted much more relief than simply removing
the lien—it also provided that Appellant take nothing on all of his claims seeking
payment from Appellees. Counsel for Appellant did not become aware of the “take
nothing” component of the judgment until more than thirty days after it was entered.
We conclude that Appellant may challenge the judgment by way of restricted appeal.
We affirm in part, and reverse and remand in part.
Factual and Procedural History
Appellant, Jerry Spence d/b/a Big Country Irrigation, entered into an oral
agreement with Appellees, Mark Hadley and Virginia Reger Morton, Trustee of the
Virginia Reger Morton Trust, in which Appellant agreed to repair two water wells
for Appellees in exchange for payment. On October 23, 2018, Appellant filed a
petition in District Court in Jones County, Texas, alleging breach of contract and
seeking damages, attorney’s fees, a decree recognizing Appellant’s mechanic’s lien,
and foreclosure upon said lien. On November 19, 2018, Appellees answered and
asserted an affirmative defense as to the mechanic’s lien on the grounds that the
property on which the water wells are situated is Morton’s designated homestead
and that the contract was not in writing.
On January 30, 2019, Appellees filed a summary motion to remove the invalid
lien from the homestead. On April 8, 2019, Appellees’ counsel e-mailed Appellant’s
counsel to confirm that he received notice that the hearing on Appellees’ motion had
been set for May 10, 2019. Appellant’s counsel explained that he would be out of
the country on that day and requested that Appellees reschedule the hearing.
Appellees’s counsel responded, “Yes, I’ll agree to a continuance.” However, the
hearing was never rescheduled.
At the May 10 hearing, the trial court asked Appellees whether anyone
entitled to notice of the hearing was absent; Appellees responded that Appellant
“has received notice and has not appeared.” The hearing proceeded without
2
Appellant’s counsel, but the trial court revisited the matter of the absence of
Appellant’s counsel, resulting in the following exchange:
THE COURT: [H]ow did you serve Mr. Boone [Appellant’s
Counsel] with notice of today’s hearing?
[APPELLEES’ COUNSEL]: Electronic service and then I
followed up with an e-mail directly to him. He did respond to my e-
mail.
THE COURT: And did he say he wouldn’t be here today?
[APPELLEES’ COUNSEL]: He indicated that he was going to
file for a continuance -- or he actually requested that I file a
continuance; however, I cannot do that, sir, because my -- that would
be indirect [sic] violation of the interest of my client. I did tell him that
if he were to seek a continuance that I would not oppose him.
(Brief pause. Court on the phone.)
THE COURT: Mr. Campbell, Mr. Boone, he practices up here.
The reason I called is he -- I don’t know that he’s ever missed a hearing
or even been late for a hearing. He’s out of the country. His paralegal
said she didn’t have it on the calendar. Are you wanting to proceed
forward with your relief today?
[APPELLEES’ COUNSEL]: Yes, sir.
Appellees then submitted a proposed order to the trial court, granting Appellees’
summary motion for removal of the invalid lien. The trial court instructed Appellees
to e-file the proposed order and it would be entered.
There was no discussion at the hearing, nothing in the title of the order, and
nothing in the record, other than the fact that it had been e-filed, indicating that the
trial court or Appellant’s counsel was actually aware that the proposed order, in
addition to removing the lien, also included an inserted paragraph with the following
language:
IT IS ORDERED that [Appellant] . . . take nothing against
[Appellees] . . . [and] that all claims asserted by [Appellant] are
denied. . . .
3
....
. . . This judgment finally disposes of all parties and claims and
is appealable.
Although there was no discussion of it during the hearing or evidence of same
submitted, the order also summarily ordered that Appellant “pay reasonable
attorney’s fees in the amount of $5,000.00 to [Appellees].”1 The trial court signed
this order on June 20, 2019.
On November 21, 2019, Appellant moved for summary judgment on his
breach of contract claim. Four days later, Appellees submitted a plea to the
jurisdiction, arguing that the trial court lacked jurisdiction over Appellant’s breach
of contract claim because the order it had signed five months earlier, drafted by
Appellees’ counsel, “explicitly states that, ‘all claims asserted by [Appellant] are
denied.’” Appellant’s counsel responded that “[d]espite no grounds for that relief
and no notice to me of the proposed judgment, [Appellees’ counsel] attempted to
defeat [Appellant’s] claims by trickery and deceit.” Appellant then filed a notice of
1
We are mindful of the following provisions of THE TEXAS LAWYER’S CREED—A MANDATE FOR PROFESSIONALISM:
I know that Professionalism requires more than merely avoiding the violation of laws and rules.
....
III. . . . A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of
litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual
understandings.
....
11. I will not take advantage, by causing any default or dismissal to be rendered, when I
know the identity of an opposing counsel, without first inquiring about that counsel’s intention to
proceed.
12. I will promptly submit orders to the Court. I will deliver copies to opposing counsel
before or contemporaneously with submission to the Court.
4
restricted appeal on December 12, 2019, eight days before the six-month deadline to
do so. See TEX. R. APP. P. 26.1(c).
On restricted appeal, Appellant advances two issues: (1) that, while the trial
court correctly removed Appellant’s mechanic’s lien from Appellees’ homestead
property, it reversibly erred when it also dismissed Appellant’s entire breach of
contract claim and (2) that the trial court abused its discretion in awarding attorney’s
fees in the amount of $5,000 to Appellees because it had no evidence or basis upon
which to conclude that such an amount was necessary, just, and equitable. Appellees
counter that we have no jurisdiction to consider this case on restricted appeal because
Appellant participated in the decision-making process that resulted in the dismissal
of all of his claims and only failed to timely appeal through the ordinary channels
because of his own negligence. Appellees also argue that Appellant cannot prevail
on his first issue because he failed to plead breach of contract alongside his
foreclosure of mechanic’s lien claim and that Appellant cannot contest the
sufficiency of the evidence to support the trial court’s award of attorney’s fees
because the scope of a restricted appeal is confined to the face of the record.
I. Jurisdiction – Appellant is entitled to a restricted appeal, under
Tex. R. App. P. 30, because he did not participate in the decision-
making event that erroneously and finally disposed of his claim for
breach of contract, and any negligence on Appellant’s part is
irrelevant.
A. Standard of Review
Under Rule 30 of the Texas Rules of Appellate Procedure: “A party who did
not participate—either in person or through counsel—in the hearing that resulted in
the judgment complained of and who did not timely file a postjudgment motion or
request for findings of fact and conclusions of law, or a [timely] notice of appeal . . .
may file a notice of appeal within [six months after the judgment or order is signed].”
Appellees challenge our jurisdiction on the ground that Appellant sufficiently
5
participated in the summary judgment decision which eliminated all of his claims
and failed to timely appeal, thus barring his entitlement to a restricted appeal.
Appellees fail to demonstrate how Appellant runs afoul of Rule 30.
With respect to the non-participation requirement, any doubts or ambiguities
will be resolved in Appellant’s favor because, “[f]or over half a century, [the Texas
Supreme Court] ha[s] required courts to liberally construe the non-participation
requirement for restricted appeals in favor of the right of appeal.” Pike-Grant v.
Grant, 447 S.W.3d 884, 886 (Tex. 2014); see also Lawyers Lloyds of Texas v. Webb,
152 S.W.2d 1096, 1098 (Tex. 1941) (“statutes giving and regulating the right of
appeal . . . should be liberally construed in favor of the right of appeal”). Ultimately,
in determining whether Appellant participated for purposes of Rule 30, “the question
is whether the appellant has participated in ‘the decision-making event’ that results
in judgment adjudicating the appellant’s rights.” Texaco, Inc. v. Cent. Power &
Light Co., 925 S.W.2d 586, 589 (Tex. 1996) (emphasis added). Making this
determination defies bright-line rules because “[t]he nature and extent of
participation that precludes [restricted] appeal . . . in any particular case is a matter
of degree,” insofar as “trial courts decide cases in a wide variety of procedural
settings.” Id. at 589; see also Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985).
Appellant’s alleged negligence in failing to timely file an ordinary appeal is
inapposite. The Texas Supreme Court has made clear that an appellant in a restricted
appeal “is not required to show diligence or lack of negligence before its complaints
will be heard.” Texaco, 925 S.W.2d at 590. In short, “it is the fact of
nonparticipation, not the reason for it, that determines the right to appeal by
[restricted appeal].” Id. No further analysis is necessary to immediately dispose of
Appellees’ argument that somehow Appellant’s negligence precludes a restricted
appeal.
6
B. Analysis
We address Appellees’ claim that Appellant participated in the summary
judgment decision that disposed of his breach of contract claim, thereby barring a
restricted appeal. The specific procedural setting in this case revolves around
Appellees’ summary motion for removal of an invalid lien. The Texas Supreme
Court has specifically stated that because “a summary judgment is decided on the
evidence presented in support of, or in reply to, the motion for summary judgment,”
“a party who has taken part in all steps of a summary judgment proceeding except
the hearing on the motion has participated in the [decision-making event].” Id. at
589. Thus, we examine whether Appellant participated in every step of the summary
judgment on his breach of contract claim, other than attending the hearing.
Appellees specifically argue that Appellant participated by:
1. conducting a deposition of Virginia Morton,
2. requesting and receiving written discovery,
3. submitting a letter to the trial court in response to the hearing, and
4. amending their pleadings to avoid the summary judgment.
To evaluate the merits of this argument, we consider each of these acts and the
context in which they occurred.
Appellees’ motion presented grounds for removing Appellant’s mechanic’s
lien but did not address Appellant’s breach of contract claim. At the hearing on
May 10, from which Appellant was absent, Appellees reiterated their arguments for
removing the mechanic’s lien but again made no mention of Appellant’s breach of
contract claim. At no point would Appellant have had any reason to believe that the
trial court’s disposition on the attachment of a mechanic’s lien would impact the
merits of his cause of action for breach of contract or other pled causes. Accordingly,
participation in breach of contract discovery or pleadings other than summary
7
judgment related to the removal/maintenance of the mechanic’s lien does not
disqualify Appellant from pursuing a restricted appeal in this matter.
With respect to the discovery conducted, Appellant did depose Virginia Reger
Morton on March 22, 2019, and questioned her about whether Appellees contracted
with Appellant for services and whether she failed to make any payments, eliciting
mostly affirmative answers. The deposition focused on whether a contract existed
and whether Appellees were in breach—in support of Appellant’s contractual cause
of action—should Appellant prove his entitlement to the relief requested. The
deposition did not discuss Appellant’s attachment of a lien to the property in order
to ensure recovery of damages, nor did it address Appellees’ designation of the
property or the grant of a homestead exemption by the county. See TEX. PROP. CODE
ANN. § 41.005(c) (West 2014). Appellant’s deposition of Morton was conducted
for the general purposes of gathering evidence to support the breach of contract
claim. The same is true as to the written discovery vaguely referenced by Appellees.
They, therefore, are not evidence of participation that would run contrary to Rule 30
in Appellant’s pursuit of a restricted appeal.
Appellees claim that Appellant’s May 10 e-mail to the trial court also
constituted participation that excludes Appellant from a restricted appeal. However,
that e-mail sought merely to inform the trial court of the reason for Appellant’s
absence from the hearing and did not argue the merits of the motion. On the record
before us, Appellant never appears to have contested Appellees’ right to removal of
the mechanic’s lien, perhaps because he conceded to its removal. Given that there
was never any prehearing notice to Appellant that anything other than the validity of
the mechanic’s lien was being addressed on May 10, it is not surprising that the e-
mail from Appellant’s trial counsel amounted to no more than a polite explanation
of his absence. It is unlikely that trial counsel would have written such a casual and
disinterested e-mail had he known otherwise. In any event, under these
8
circumstances, the e-mail does not constitute participation in the decision-making
event. It merely constitutes an explanation of absence from a decision-making event.
Appellant’s amended original petition, which added quantum meruit as an
alternative theory for the recovery of damages and attorney’s fees for breach of
contract, was filed over a month after the May 10 hearing. It was not responsive to
Appellees’ summary motion for removal of the invalid lien. The amended petition
included additional theories of recovery that were neither raised nor discussed with
the trial court at the May 10 hearing for nonpayment of work done. Again, such
alleged participation does not disqualify Appellant from pursuing a restricted appeal.
In support of their position, Appellees point to Thacker v. Thacker, which held
that a party participated in summary judgment proceedings by filing an opposing
affidavit and directing interrogatories to the movant. 496 S.W.2d 201, 202 (Tex.
App.—Amarillo 1973, no writ). This case is inapposite, however, because the
appellant in Thacker took prehearing actions directly by responding to and attacking
the grounds upon which the appellee sought summary judgment. Id. By contrast,
Appellant in this case did not file any opposing affidavit, and his interrogatories
sought general discovery relevant to all of his claims but not anything uniquely
relevant to the issue of whether a mechanic’s lien was valid. Importantly, in
Thacker, the trial court’s order granting summary judgment only disposed of matters
actually raised in the motion for summary judgment and argued by both parties. Id.The same cannot be said for the present case, in which the trial court signed an order
disposing of claims that were never addressed in Appellees’ summary motion for
removal of the mechanic’s lien. Indeed, even if Appellant had participated in every
step of proceedings regarding Appellees’ summary motion for removal of the invalid
lien, this still would not have constituted participation in summary judgment on the
breach of contract claim, since that issue was never raised by the movant and thus
was never on the chopping block. See infra Section II.
9
In this case, Appellant did not participate in every step of the summary
judgment proceedings, minus physical attendance at the hearing, on the validity of
the mechanic’s lien. See Aldrete v. City of McAllen, No. 13-16-00587-CV, 2018 WL
1417485, at *3 (Tex. App.—Corpus Christi–Edinburg Mar. 22, 2018, pet. denied)
(mem. op.). Appellant received no notice from the content of Appellees’ motion for
summary removal of the lien (or elsewhere) that any claim besides the validity of
Appellant’s mechanic’s lien would be determined by the trial court’s ruling on the
motion. Appellant did not file a response to Appellees’ motion, and as he had
advised opposing counsel, Appellant’s trial counsel was absent from the hearing on
Appellees’ motion. Appellant had no notice that the trial court, in deciding whether
Appellant’s mechanic’s lien needed to be removed from Appellees’ homestead
property, would also dispose of claims that in no way depended on the fate of the
mechanic’s lien. On these facts, and in light of our mandate to construe such matters
in favor of an appellant’s right to appeal, we cannot accept Appellees’ contention
that Appellant is prohibited from a restricted appeal because he participated in the
decision-making event that adversely affected his rights. Therefore, we conclude
that we have jurisdiction to consider Appellant’s restricted appeal. Accordingly,
Appellees’ motion to dismiss the appeal is denied.
II. Issue One – The trial court erred in granting summary judgment on
Appellant’s breach of contract claim because only removal of
Appellant’s mechanic’s lien had been raised in Appellees’ Summary
Motion to Remove Invalid Lien.
A. Standard of Review
We review a grant of summary judgment de novo. KCM Fin. LLC v.
Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015); Nall v. Plunkett, 404 S.W.3d 552, 555
(Tex. 2013). If a trial court’s grant of summary judgment decrees that “plaintiff take
nothing,” even if the movant sought summary judgment “on only one of [multiple]
claims asserted by the plaintiff,” then “the judgment is final—erroneous, but final.”
10
Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001) (alteration in original)
(quoting Lehmann v. Har–Con Corp., 39 S.W.3d 191, 200 (Tex. 2001)). Thus, with
respect to any claim that the movant does not specifically attack in its motion,
“summary judgment on that claim [i]s erroneous.” Id. Indeed, not only may a trial
court not grant summary judgment on any claim not specifically addressed in the
motion, but an appellate court may not consider any matter outside the scope of the
movant’s motion in reviewing a grant of summary judgment. McConnell v.
Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993) (“The motion for
summary judgment must itself state specific grounds on which judgment is
sought. . . . The motion for summary judgment must stand or fall on the grounds it
specifically and expressly sets forth. . . . [And] a summary judgment cannot be
sustained on a ground not specifically set forth in the motion.” (quoting Westbrook
Constr. Co. v. Fid. Nat’l Bank of Dallas, 813 S.W.2d 752, 754–55 (Tex. App.—Fort
Worth 1991, writ denied))). Thus, “if the grounds for summary judgment are not
expressly presented in the motion . . . itself, the motion is legally insufficient as a
matter of law.” Id. at 342.
B. Analysis
Appellees in this case filed a summary motion for removal of an invalid
mechanic’s lien, and specifically stated the grounds upon which they were entitled
to such relief. However, Appellees did not state specific grounds on which they
sought or believed they were entitled to summary judgment on Appellant’s breach
of contract claim. Thus, as a matter of law, Appellees’ summary motion was legally
insufficient to warrant a grant of summary judgment on Appellant’s breach of
contract and other remaining claims. Id. Thus, “because the breach of contract claim
was not addressed in [Appellees’] motion, summary judgment on that claim was
erroneous.” Satterwhite, 65 S.W.3d at 655.
11
Appellees contend that the trial court’s grant of summary judgment on all of
plaintiff’s claims was not erroneous because “Appellant failed to plead any cause of
action other than to foreclose its mechanic’s lien.” Appellees acknowledge our
mandate to “liberally construe the pleadings in the pleader’s favor,” but ultimately
characterize Appellant’s breach of contract claim as “plainly not there.” See Bos v.
Smith, 556 S.W.3d 293, 306 (Tex. 2018). We disagree with that characterization.
Appellant’s original petition plainly alleges a claim for breach of contract.
Paragraph four of Appellant’s original petition describes the parties as having
“entered into a [sic] oral contract by which [Appellant] agreed to provide materials
and labor relating to the pulling and repair of two water wells . . . [and Appellees]
agreed to pay . . . the reasonable and necessary charges for the repair.” Paragraph
five states that “[Appellant] fully performed all conditions, covenants, and promises
required under the contract.” And finally, the very title of paragraph six itself is:
“Damages; Balance Due on Contract.” In short, Appellant’s breach of contract claim
is, in fact, plainly there.
Appellees alternatively argue that, even if breach of contract was pleaded by
Appellant, it was not clear because it was not in a separate count from the lien claim,
as required by Rule 50 of the Texas Rules of Civil Procedure. This argument has no
merit. Paragraphs four through six of Appellant’s original petition allege breach of
contract, whereas Appellant’s claim for foreclosure of a mechanic’s lien is confined
entirely to paragraph eight and the prayer for relief. Moreover, in the prayer for
relief, Appellant makes nine requests, with damages for breach of contract being
number one, and a judgment recognizing Appellant’s mechanic’s lien and
foreclosure of said lien at numbers four and five. Not only are these prayers for
relief clearly separate, but they are separated by two other separate forms of relief.
Because Appellant plainly alleged breach of contract in his original petition,
separate from his mechanic’s lien claims, we conclude that the trial court’s grant of
12
summary judgment, denying “all claims asserted by [Appellant],” is erroneous as a
matter of law. Appellant does not dispute the trial court’s removal of the mechanic’s
lien, nor do we find error with the court’s judgment in that respect. Thus, we sustain
Appellant’s first issue, but we affirm the trial court’s removal of Appellant’s
mechanic’s lien.
III. Issue Two – The trial court erred in awarding attorney’s fees of
$5,000 to Appellees because there is insufficient evidence on the face
of the record to indicate that an award in that amount is reasonable,
just, and equitable.
A. Standard of Review
On restricted appeal, the error complained of must be apparent on the face of
the record. See Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020). This is not a
jurisdictional requirement. Rather, when an appellate court does have jurisdiction
over an appellant’s restricted appeal, the appellant can only prevail on their alleged
point of error if it appears on the face of the record. Id. at 497. With the exception
of being confined to the face of the record, a review by restricted appeal “affords an
appellant the same scope of review as an ordinary appeal, that is, a review of the
entire case.” Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.
1997). The face of the record “consists of all the papers on file in the appeal,
including the statement of facts,” and “review of the entire case includes review of
legal and factual insufficiency claims.” Id.Section 53.156 of the Texas Property Code states that in any proceedings to
either foreclose on a lien or to declare a lien invalid or unenforceable, “the court
shall award costs and reasonable attorney’s fees as are equitable and just.” PROP.
§ 53.156 (emphasis added). Prior to September 1, 2011, this statute instructed that
courts “may” award reasonable, just, and equitable attorney’s fees, but the legislature
has since made such an award—when reasonable, just, and equitable—mandatory.
See Act of May 2, 2011, 82d Leg., R.S., ch. 51, § 1, 2011 Tex. Gen. Laws 80. Thus,
13
trial courts no longer have discretion with respect to whether to award attorney’s
fees in lien proceedings, unless there is no amount which, if awarded, would be
reasonable, just, and equitable.
In reviewing an award of attorney’s fees under Section 53.156, appellate
courts “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.” Bocquet v. Herring, 972 S.W.2d 19, 21
(Tex. 1998). Trial courts have discretion to refuse an award of attorney’s fees when
doing so would be unjust or inequitable. See, e.g., Acme Energy Servs., Inc. v. Staley,
569 S.W.3d 841, 851 (Tex. App.—El Paso 2019, no pet.) (Court of appeals upheld
trial court’s refusal to award attorney’s fees under Section 53.156, concluding that,
“[a]warding fees in an equitable and just way is a matter squarely within the trial
court’s discretion.”). And courts may not award attorney’s fees that are
unreasonable, based on the evidence presented to the trial court in support of such
an award. See Bocquet, 972 S.W.2d at 21 (“Unreasonable fees cannot be awarded,
even if the court believed them just[.]”). Thus, there must be sufficient evidence to
support a finding that the amount of fees awarded is reasonable and then the trial
court has additional discretion to determine whether such an award would also be
equitable and just. Id.
For purposes of our review, it is important to note that “[i]t is an abuse of
discretion for a trial court to rule . . . without supporting evidence.” Id. (citing
Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Indeed, when a statute
authorizes the awarding of attorney’s fees to a prevailing party, “the party seeking a
fee award must prove the reasonableness and necessity of the requested attorney’s
fees.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 484
(Tex. 2019). The purpose of statutes that authorize the awarding of attorney’s fees
is “to compensate the prevailing party for its reasonable losses resulting from the
14
litigation process,” and thus, “only fees reasonable and necessary for the legal
representation will be shifted . . . and not necessarily the amount contracted for
between the prevailing party and its attorney.” Id. at 487. A trial court must possess
“sufficient information to make a meaningful evaluation of the application for
attorney’s fees,” and any charges for “duplicative, excessive, or inadequately
documented work should be excluded.” El Apple I, Ltd. v. Olivas, 370 S.W.3d 757,
762 (Tex. 2012).
The standard for determining whether an award of attorney’s fees is
reasonable and necessary is the lodestar method, according to which the factfinder
must begin by determining “the reasonable hours worked multiplied by a reasonable
hourly rate,” and the party seeking the award of attorney’s fees “bears the burden of
providing sufficient evidence on both counts.” Rohrmoos, 578 S.W.3d at 498. This
calculation requires some basic information, “including itemizing specific tasks, the
time required for those tasks, and the rate charged by the person performing the
work.” City of Laredo v. Montano, 414 S.W.3d 731, 736 (Tex. 2013). To establish
these details, an attorney may simply testify. However, “in all but the simplest cases,
the attorney would probably have to refer to some type of record or documentation
to provide this information.” El Apple, 370 S.W.3d at 763. And even in the rare
case, where testimony alone might suffice, “testimony in generalities about tasks
performed in a case that d[o] not provide enough information for a meaningful
review of whether the tasks and hours were reasonable and necessary [i]s an
insufficient basis for a lodestar calculation.” Montano, 414 S.W.3d at 735–36.
B. Analysis
In the present case, Appellees argue that because our review is confined to the
face of the record, we are not permitted to review the sufficiency of the evidence.
Appellees offer no caselaw to support this contention. Nevertheless, we need not
search for controlling authority other than that the Texas Supreme Court has said
15
precisely the opposite in Norman, holding that appellate courts review the entire case
on restricted appeal, which “necessarily . . . includes review of legal and factual
insufficiency claims.” 955 S.W.2d at 270.
Appellees also point out that Appellant misstates the law by characterizing the
statute authorizing attorney’s fees in lien proceedings as instructing trial courts that
they “may” award such fees, when the statute currently states that they “shall” award
them. Appellees are correct on this point. The statute has been amended to replace
the word “may” with the word “shall.” See PROP. § 53.156. However, as previously
explained, by its plain language this linguistic substitution only removed a trial
court’s discretion to refuse to award attorney’s fees even when they are reasonable,
just, and equitable. It did not, however, change the requirement that “[u]nreasonable
fees cannot be awarded” or the principle that “[i]t is an abuse of discretion . . . to
rule without supporting evidence.” Bocquet, 972 S.W.2d at 21.
Appellees, as the parties seeking an award of attorney’s fees following
removal of an invalid lien in the present case, had the burden of producing sufficient
evidence of (1) the reasonable hours worked on specific, itemized tasks undertaken
to litigate the removal of the lien and (2) the reasonable hourly rate for that work.
See Rohrmoos, 578 S.W.3d at 498. Appellant argues that Appellees did not provide
sufficient evidence and that the trial court thereby abused its discretion in granting a
$5,000 award of attorney’s fees based on insufficient evidence. Appellees claim that
they did provide sufficient evidence in their “Supplemental Response to Appellant’s
Request for Disclosures” and by the sheer fact of having filed pleadings and
attending depositions and hearings. However, the only information Appellees
provided in their supplemental response was anemic, conclusory, and overly general:
“Attorney’s fees billed and estimated through arguments on Summary Motion to
Remove Invalid Lien pursuant to Texas Property Code § 53.156. Attorney’s fees
are billed at a rate of $200 per hour.” This assertion that the rate is $200 per hour
16
does not, however, establish that $200 per hour is the reasonable rate for such work.
See id. at 487. Moreover, there is no indication of the specific, itemized tasks that
were conducted, nor the number of hours dedicated to conducting each one. See
Montano, 414 S.W.3d at 736. As such, there is insufficient information on the face
of the record to calculate even the lodestar baseline for a reasonable award of
attorney’s fees in this case. See Rohrmoos, 578 S.W.3d at 498; Montano, 414
S.W.3d at 736; El Apple, 370 S.W.3d at 763.
Furthermore, Appellees cannot cure the above deficiency and establish the
reasonableness of the trial court’s award of $5,000 in attorney’s fees by simply
pointing out that Appellees filed pleadings, attended depositions, and attended
hearings. See, e.g., El Apple, 370 S.W.3d at 763 (holding that attorneys presented
insufficient evidence to establish the reasonableness of their requested award of
attorney’s fees because they “based their time estimates on generalities such as the
amount of discovery in the case, the number of pleadings filed, the number of
witnesses questioned, and the length of the trial,” noting that while such facts are
relevant, “it provides none of the specificity needed for the trial court to make a
meaningful lodestar determination”). Moreover, this general argument about the
pleadings filed and the attendance at depositions and hearings was not made to the
trial court but, rather, was made for the first time in Appellees’ brief to this court.
While the trial court would not have had enough information to conduct a lodestar
calculation even if it had been presented with these generalities, it most certainly did
not have enough information considering that these generalities were only addressed
to us.
For all of these reasons, we hold that the trial court lacked sufficient evidence
to award attorney’s fees in the amount of $5,000 to Appellees. Therefore, we sustain
Appellant’s second issue. This does not mean that an award of attorney’s fees is
improper but, rather, that the amount awarded in this case is not based on sufficient
17
evidence on the face of the record. As such, we remand this issue to the trial court
for redetermination of the attorney’s fees, if any, that should be awarded. See
Rohrmoos, 578 S.W.3d at 505; El Apple, 370 S.W.3d at 765; Montano, 414 S.W.3d
at 736.
This Court’s Ruling
Appellees’ motion to dismiss the appeal is denied. We affirm the judgment
of the trial court insofar as it ordered that Appellant’s mechanic’s lien on Appellees’
homestead be removed from the county records. We reverse the judgment of the
trial court insofar as it entered a take-nothing judgment in favor of Appellees on
Appellant’s claim for breach of contract, and we remand that claim to the trial court
for further proceedings. We vacate the trial court’s judgment insofar as it awarded
$5,000 in attorney’s fees to Appellees, and we remand for a redetermination of the
proper amount of attorney’s fees to be awarded, consistent with this opinion.
W. BRUCE WILLIAMS
JUSTICE
October 28, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
18