American International Industries, Inc. v. Surgicare, Inc.

  Opinion issued July 17, 2008  

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-07-00116-CV

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AMERICAN INTERNATIONAL INDUSTRIES, INC., Appellant

V.

SURGICARE, INC., Appellee

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On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Cause No. 20867

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MEMORANDUM OPINION

Appellant, American International Industries, Inc. ("AII"), appeals the judgment of the trial court awarding appellee, Surgicare, Inc. ("Surgicare"), $60,613.50 as attorney's fees and $3,420 as expenses in the underlying lawsuit between Vincent Giammalva and Surgicare, LeBlanc, and Scott. ⁽¹⁾ In four issues, AII argues that (1) Surgicare failed to provide evidence that the attorney's fees awarded by the trial court were reasonable; (2) the trial court erred in admitting a summary of Surgicare's invoices for legal services; (3) the evidence did not support the amount of attorney's fees as awarded; and (4) the trial court erred in awarding attorney's fees on appeal.

We affirm the judgment of the trial court.

Background

In 2003, Surgicare and Giammalva entered into an earnest money contract for the sale of a piece of property located in Chambers County, Texas. However, the holder of the Deed of Trust lien on the Chambers County property did not grant a partial release of the lien on the property, as Surgicare had originally anticipated, and Surgicare was unable to fully perform under the earnest money contract. Giammalva filed a lawsuit against Surgicare on November 20, 2003.

In June 2004, Surgicare and AII entered into a separate agreement in which Surgicare agreed to sell five properties, one of which was the Chambers County property that was subject to the suit with Giammalva, to AII. Surgicare asserted that, as part of that transaction and in several other related agreements, AII agreed to indemnify Surgicare for attorney's fees and expenses incurred in the lawsuit with Giammalva. On March 28, 2005, Surgicare filed a cross-action against AII seeking contractual contribution and indemnity under its various agreements with AII.

On March 31, 2005, Giammalva amended his petition to add AII as a defendant in his suit against Surgicare. AII filed a general denial of any claims against it on May 13, 2005. On November 21, 2005, the trial court granted partial summary judgment in favor of Giammalva, and AII and Giammalva eventually reached a settlement agreement. All of Giammalva's claims were dismissed with prejudice, leaving only Surgicare's claim for indemnity from AII pending before the trial court.

On January 6, 2006, Surgicare filed a motion for summary judgment on its indemnity claim against AII. The trial court granted Surgicare's motion for summary judgment, ordering that AII was liable to indemnify Surgicare for any loss, liability or judgment in the Giammalva case, including "its reasonable and necessary attorney's fees and expenses associated with this claim." The trial court's order on Surgicare's motion for summary judgment also stated that the order "[did] not dispose of the issue of the amount of reasonable and necessary attorney's fees and expenses to which Surgicare is entitled to be indemnified by [AII], which issue is expressly reserved."

On March 21, 2006, AII and Surgicare appeared before the trial court to establish the proper amount of the "reasonable and necessary attorney's fees" for which Surgicare was entitled to be indemnified by AII. Surgicare presented the testimony of Jana Woelfel, Surgicare's counsel of record throughout the Giammalva case and a partner at the law firm that provided legal counsel to Surgicare and its officers throughout the entire Giammalva matter. Surgicare also presented invoices and other documents relating to the people and labor involved in providing legal counsel for it during the Giammalva case. AII presented the testimony of Jerry Shutza, counsel of record for AII.

The trial court signed its final judgment November 13, 2006, awarding Surgicare $60,513.50 as reasonable and necessary attorney's fees, $3,420.00 as reasonable and necessary expenses, post-judgment interest in the amount of 8.25% to be compounded annually, and $17,500 as reasonable and necessary attorney's fees in the event of an unsuccessful appeal by AII.

Admission of Summary of Fees and Expenses

In its second issue, AII claims that the trial court erred in admitting Surgicare's summary of fees and expenses because it failed to present the proper predicate for the introduction of a summary.

Standard of Review

The admission of documents that summarize other documents is controlled by Texas Rule of Evidence 1006, which states:

The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

Tex. R. Evid. 1006. In reviewing the trial court's decision to admit a summary, we determine whether the trial court abused its discretion by ruling without regard for any guiding rules and principles. C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 799 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (citing Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)).

Analysis

AII argues that the trial court erred in admitting Surgicare's summary of the fees and expenses it incurred in connection with the Giammalva case. AII argues that Surgicare failed to show that the contents of the documents being summarized were voluminous and that they had been presented to AII.

Before seeking to admit the summary, Woelfel testified as follows:

This is a summary listing from our [firm's] accounting system in connection with this file[.] [I]t is a summary sheet that I presented yesterday that concerns this case that contains summary data that will help me answer your questions more quickly and efficiently as opposed to the invoices and going through and running totals with a calculator.

AII objected:

Your Honor, I have not seen this before. I object if this is a summary. They have failed to lay a predicate for the introduction of a summary.

If they have the documents that form the basis, they . . . need to offer those documents, I think. Those are the documents provided to us previously which we are more familiar with.

The trial court overruled AII's objection, stating, "If the documents are present in the court, a summary is admissible." Surgicare affirmed that the documents that formed the basis of the summary were in the courtroom.

Woelfel's testimony that using the summary would allow her to answer questions "more quickly and efficiently" than if she had to testify from the invoices and the fact that the trial court was already aware from the pleadings and prior motions of the parties that Woelfel would be testifying about the expenses and fees billed to Surgicare by its legal counsel over a period of time that stretched from the 2003 agreement with Giammalva until the time of trial in March 2006 were sufficient for the trial court to conclude that the invoices were voluminous and could not be conveniently examined in court. See Tex. R. Evid. 1006. Furthermore, the transcript clearly reflects that AII had the opportunity to review both the summary and the invoices that formed the basis of the summary. The invoices were present in the courtroom, and counsel for AII even stated that the invoices were provided to it earlier and that AII was "more familiar with" the invoices. Therefore, the trial court did not abuse its discretion in admitting the summary of the invoices reflecting the fees and expenses billed to Surgicare in connection with the Giammalva case. See C.M. Asfahl Agency, 135 S.W.3d at 799-800.

We overrule AII's second issue.

Evidence on Award of Attorney's Fees

In its first, third, and fourth issues, AII claims that Surgicare failed to provide evidence of the reasonableness of the attorney's fees awarded, that the evidence did not support the amount of attorney's fees awarded by the trial court, and that Surgicare failed to present any evidence on the reasonableness of attorney's fees on appeal.

As a preliminary matter, we note that AII's arguments in its brief raise several points questioning the trial court's interpretation of the indemnity agreements and the correctness of the trial court's ruling that AII was liable to idemnify Surgicare for its attorney's fees and expenses relating to the entirety of the Giammalva case. Specifically, AII makes a cursory argument that the agreements between AII and Surgicare released AII from liability and limited AII's obligation to indemnify Surgicare for attorney's fees to those which accrued after July 27, 2004. However, the existence and extent of AII's obligation to indemnify Surgicare for attorney's fees and expenses were settled in the trial court's February 2, 2006 order, in which the trial court ruled that AII owed defense and indemnity to Surgicare "for any loss, liability, judgment or settlement attributable to or had against [Surgicare] in the pending matter, including this Court's judgment . . . awarding attorney's fees and expenses to [Giammalva], against Defendants [including AII and Surgicare] jointly and severally," and including an order that AII was specifically "liable in all respects to pay [Surgicare] its reasonable and necessary attorney's fees and expenses associated with [the Giammalva] claim."

On appeal, AII does not complain of the trial court's February 2, 2006 order establishing that it is liable for all of Surgicare's attorney's fees connected with the Giammalva case, and does not properly brief this Court on those issues. Therefore, we do not consider them. See Tex. R. App. P. 38.1(h) (requiring an appellant's brief to contain a "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"); see also McCoy v. Rogers, 240 S.W.3d 267, 272 (Tex. App.--Houston [1st Dist.] 2007, pet. denied) ("[W]e may not grant relief unless the party asserting error provides argument and supporting authorities.").

Standard of Review

We review a trial court's granting of attorney's fees for an abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). A trial court abuses its discretion when it acts arbitrarily and unreasonably and without reference to guiding rules and principles. Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The legal and factual sufficiency of the evidence are not independent grounds of error in an abuse-of-discretion standard case, though they are relevant factors in assessing whether the trial court abused its discretion. Miles v. Peacock, 229 S.W.3d 384, 388-89 (Tex. App.--Houston [1st Dist.] 2007, no pet.); see also Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Johnson v. Oliver, 250 S.W.3d 182, 187 (Tex. App.--Dallas 2008, no pet.) (applying this standard to award of attorney's fees). Any award of attorney's fees must be supported by competent evidence. Ajudani v. Walker, 232 S.W.3d 219, 225 (Tex. App.--Houston [1st Dist.] 2007, no pet.).

The Texas Supreme Court has stated the following factors for courts to consider when determining whether attorney's fees are reasonable: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the service; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (citing Tex. Disciplinary R. Prof'l Conduct 1.04, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005 & Supp. 2007) (Tex. State Bar R., art. X, § 9)). A court is not required to receive evidence on all of the factors. Burnside Air Conditioning & Heating, Inc. v. T. S. Young Corp., 113 S.W.3d 889, 897-98 (Tex. App.--Dallas 2003, no pet.).

Analysis

In its first and third issues, AII argues that Surgicare did not provide evidence that demonstrated the reasonableness of the attorney's fees awarded or that supported the amount of attorney's fees awarded by the trial court. At trial, Surgicare presented the testimony of Woelfel, who testified about her own level of experience and that of the other lawyers who worked with her on the Giammalva case. She testified to the various aspects of the case that were handled by lawyers at her firm, including property and transactional issues and litigation issues. Woelfel also testified that the lawyers at her firm generally billed clients between $175 and $350 per hour, depending on their experience level, but that Surgicare was billed at special, reduced rates because a large amount of its legal work was handled by the firm. Woelfel also testified to some specific circumstances relating to discovery that made the representation of Surgicare more difficult and costly.

Surgicare also presented documents, including several invoices and summaries that were sent directly to AII's legal counsel and the summary discussed above, which summarized the total amount billed to Surgicare in connection with the Giammalva case. The summary stated that Surgicare had been billed $63,471 in fees and $3,420.20 in expenses as of March 20, 2006. The summary also reflected that Surgicare's legal representation had reported $3,965.50 in fees and $324.48 in expenses that had not yet been billed. Additionally, Woelfel estimated that representation of Surgicare in preparing and conducting the March 21, 2006 trial on attorney's fees would cost approximately $6,750 in fees. Woelfel testified that her firm had billed Surgicare for a total amount just under $78,000 in connection with the Giammalva litigation.

On cross-examination, counsel for AII specifically questioned Woelfel about a 4.8 hour time entry by a lawyer at the firm, and Woelfel conceded that part of the 4.8 hours was not attributable to the litigation in question. AII did not question any other specific entries. ⁽²⁾

Shutza, counsel for AII, testified that, in his opinion, Surgicare had been billed for too many hours, that rates of $175 to $350 an hour were excessive, and that the total cost for Surgicare's representation should have been between $12,000 and $15,000. Shutza gave general testimony regarding his understanding that other firms did not charge as much as the firm representing Surgicare, but he did not provide any specific names or rates or any other evidence. Shutza also suggested that the discovery difficulties mentioned by Woelfel were not his client's fault.

Based on this evidence, the trial court made the following findings of fact on November 13, 2006:

18. Surgicare incurred approximately $40,000 in reasonable and necessary attorney's fees and expenses through October 2005[.]

19. Surgicare incurred an additional approximately $15,000 in reasonable and necessary attorney's fees and expenses through January 2006 when Giammalva's amended motion for summary judgment was heard, as was Surgicare's motion for summary judgment on the indemnity issue[.]

24. During the trial regarding the reasonableness and necessity of attorney's fees to award to [counsel for Surgicare], counsel for AII did not point the Court to any time entries he contended were double entries.

25. During the trial regarding the reasonableness and necessity of attorney's fees to award to [counsel for Surgicare], counsel for AII did not point the Court to specific time entries that were attributable to another matter with the exception of one part of one time entry.

26. During the trial regarding the reasonableness and necessity of attorney's fees to be awarded to [counsel for Surgicare], counsel for AII did not present competent evidence of the hourly rates charged by similar firms, handling similar litigation matters.

27. During the trial regarding the reasonableness and necessity of attorney's fees to award to [counsel for Surgicare], counsel for AII did not point the Court to any activities contained within [counsel for Surgicare's] time entries which AII contended were unnecessary.The trial court also made the following conclusions of law:

42. Surgicare presented competent evidence, including the testimony of Ms. Jana Woelfel, time records and various documents contained within the trial record of this matter, regarding the reasonableness and necessity of the attorney's fees and expenses it seeks.

43. The evidence presented by Surgicare conclusively establishes that the fees hereinafter awarded to Surgicare by the Court are reasonable and necessary.

44. The fees hereinafter awarded to Surgicare by the Court are reasonable and necessary based on the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly.

45. The fees hereinafter awarded to Surgicare by the Court are reasonable and necessary based on the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer.

46. The fees hereinafter awarded to Surgicare by the Court are reasonable and necessary based on the fee customarily charged in the locality for similar legal services.

47. The fees hereinafter awarded to Surgicare by the Court are reasonable and necessary based on the amount involved and the results obtained.

48. The fees hereinafter awarded to Surgicare by the Court are reasonable and necessary based on the time limitations imposed by the client or by the circumstances.

49. The fees hereinafter awarded to Surgicare by the Court are reasonable and necessary based on the experience, reputation, and ability of the lawyer or lawyers performing the services. The trial court's conclusions of law indicated that it found Surgicare's attorney's fees reasonable and necessary based on the evidence of the time and labor required, the novelty and difficulty of the questions involved, the skill required to perform the legal services properly, the likelihood that the particular employment precluded the lawyers involved from seeking other employment, the fee customarily charged in the locality for similar services, the amount involved and the results obtained, the time limitations imposed by the client or by the circumstances, and the experience, reputation, and ability of the lawyers performing the services. The trial court's conclusions were all supported by Woelfel's testimony regarding the nature of the controversy and legal services required by Surgicare and by the documentary evidence that Surgicare was billed at least $63,471 in fees and $3,420.20 in actual time and labor. The trial court addressed six of the eight factors listed in Arthur Anderson and awarded Surgicare $60,613.50 in fees and $3,420 in expenses--amounts that are clearly supported by the evidence. See Arthur Andersen & Co., 945 S.W.2d at 818; see also Burnside Air Conditioning & Heating, 113 S.W.3d at 897-98 (holding that a court is not required to consider every factor). Furthermore, the trial court was permitted to "look at the entire record, the evidence presented on reasonableness, the amount in controversy, the common knowledge of the participants as lawyers and judges, and the relative success of the parties" in making its decision to award attorney's fees. See Burnside Air Conditioning & Heating, 113 S.W.3d at 897.

In its fourth issue, AII makes a cursory argument that the trial court erred in awarding Surgicare $17,500 in attorney's fees in the event of an unsuccessful appeal by AII because Surgicare did not present any evidence of the reasonableness of attorney's fees on appeal. However, Surgicare had already presented the trial court with evidence of the novelty and difficulty of the questions involved, the skill required to perform the legal services properly, the hourly billing rate charged by its counsel, and the experience, reputation, and ability of the lawyers performing the services, and it had asserted that $35,000 would be a reasonable amount of attorney's fees in the event of an appeal. See Arthur Andersen & Co., 945 S.W.2d at 818. Again, the trial court also was permitted to consider "the common knowledge of the participants as lawyers and judges." See Burnside Air Conditioning & Heating, 113 S.W.3d at 897.

The record reflects that the trial court considered the Arthur Anderson factors in determining the reasonableness and necessity of the amount of attorney's fees awarded in this case. The record also reflects that the trial court's award of attorney's fees was based on competent evidence. See Ajudani, 232 S.W.3d at 225. Therefore, the trial court did not abuse its discretion in determining that Surgicare was owed reasonable and necessary attorney's fees of $60,613.50, plus $17,500 in the event of an unsuccessful appeal by AII, and expenses of $3,420. See Bocquet, 972 S.W.2d at 21.

We overrule AII's first, third, and fourth issues.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

1. The underlying lawsuit is Vincent Giammalva, Trustee v. Surgicare, Inc., et al., No. 20867 in 334th District Court of Chambers County.

2. AII complains for the first time on appeal about Surgicare's inclusion of invoices submitted to Orion Healthcorp, Inc. on the ground that they are billings to an "unrelated" party. Because this issue was not raised in the trial court, it is waived on appeal. See Tex. R. App. P. 33.1(a). We note that Woelfel testified at trial that Orion Healthcorp, Inc. was the successor of Surgicare.