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  2. MERCIER v. SOUTHWESTERN BELL YELLOW PAGES INC
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Southside Indep. The supreme court has made it clear, that, rigorous as it may seem, rule a c must be applied as written and we are not allowed to review the summary judgment evidence to determine whether grounds or "issues" when, as in the present case, referring to a non-movant's response are expressly presented; instead, they must be stated in the written response. Schlegel , S. Dodds , 69 S. Because Mercier failed to specifically address the elements of each cause of action on which he claimed fact issues existed and because he failed to expressly present any issues precluding summary judgment in his written response, Mercier did not raise any fact issues precluding summary judgment.

We interpret this to mean that the term "issues" and "grounds" are used interchangeably depending on whether we are referring to the movant or non-movant. On appeal, Mercier also contends that summary judgment was improper because his written response to Southwestern Bell's motion for summary judgment raised genuine issues of material fact as to two affirmative defenses. He contends his response "fairly raises the affirmative defenses of fraud and failure of consideration.

Instead, Mercier raised the defenses in the affidavit attached as summary judgment evidence. We have already held that issues a nonmovant contends avoid the movant's entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment evidence.

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McConnell , S. And, we are not allowed to review the summary judgment evidence to determine whether issues are expressly presented in the written response. See id. Because Mercier failed to expressly present the affirmative defenses in his written response, and further failed to address the elements of each cause of action on which he claimed fact issues existed, his response raised no fact issues precluding summary judgment. Mercier's first issue is overruled.

Mercier contends Southwestern Bell failed to demonstrate the reasonableness and necessity of the fees. We agree. The trial court awarded attorney's fees under section Section The trial court has discretion to fix the amount of attorney's fees, but does not have discretion to deny attorney's fees entirely if they are proper.

MERCIER v. SOUTHWESTERN BELL YELLOW PAGES INC

See Great Global Assurance Co. Keltex Properties , S. Gay , S. Herring , S. The awarding of fees under section Budd , S. A trial court's award of attorney's fees is thus reviewed for an abuse of discretion. Bocquet , S.


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Progressive Voters League , S. A trial court abuses its discretion when it acts arbitrarily and unreasonably and without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc. When reviewing matters reserved for the trial court's discretion, a court of appeals may not substitute its own judgment for that of the trial court.

See Flores v. Fourth Court of Appeals , S. The determination of reasonable attorney's fees is a question for the trier of fact. See Ragsdale , S. Nielson , S. Factors to be considered in determining the amount of reasonable attorney's fees include: 1 the time and labor required, novelty and difficulty of the question presented, and the skill required to properly perform the legal service; 2 the likelihood that the acceptance of employment precluded other employment by the lawyer; 3 the fee customarily charged in the locality for similar 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 performing the services; and 8 whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

G app. A Vernon TEX. Perry Equip. The court is not required to receive evidence on each of these factors. Burnside Air Conditioning Heating, Inc. Young Corp. The court can also 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.

Citing Ragsdale , Southwestern Bell argues that its affidavit on attorney's fees was "clear, direct, and uncontroverted," and, therefore, established its entitlement to attorney's fees "as a matter of law. Southwestern Bell further contends the trial court correctly awarded the fees because "Mercier had the means and opportunity of disproving the affidavit and failed to do so.

Generally, the testimony of an interested witness, such as a party to the suit, though not contradicted, does no more than raise a fact issue to be determined by the factfinder.

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Where the testimony of an interested witness, however, is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon, it is taken as true, as a matter of law. This is especially true where the opposing party had the means and opportunity to disprove the testimony or evidence and failed to do so. Supply Co. Gulf Electroquip, Inc. This exception to the general rule regarding interested witness testimony, however, does not mean in every case in which a party offers uncontradicted testimony, such testimony mandates an award of the entire amount sought.

Ragsdale , S.

Hrabar , S. Our Redeemer Lutheran Church , S. Even though the evidence might be uncontradicted, if the offered evidence is unreasonable, incredible, or its belief is questionable either from another witness or attendant circumstances, then such evidence would only raise a fact issue to be determined by the trier of fact.

In the present case, Southwestern Bell provided an affidavit from its attorney, Ryan E. Stevens, in support of its request for attorney's fees. In the affidavit, Stevens states:. Plaintiff employed me to collect the claim on which this suit is based. In consideration for such services, Plaintiff has agreed to pay reasonable attorney's fees.

Between then and the date of this affidavit, I performed and will perform several hours of work on this matter, including or causing to be done the following: Original Petition; file suit; receive correspondence from process server confirming service of process; calculate Answer date; review Defendant's Original Answer; prepare Motion for Summary Judgment; prepare Affidavit in Support of Motion for Summary Judgment; prepare Affidavit in support of Attorney's Fees in Plaintiff's Motion for Summary Judgment; Correspondence to Plaintiff forwarding Affidavit for signature; review signed Affidavit; file Motion and Affidavits; get setting for hearing on Motion; review Defendant's response, if any; attend hearing; prepare Judgment; get Court's signature to Judgment; file same.

Stevens goes on to state that he expects "that an additional several hours of my time will be required to perform post-judgment discovery and to satisfy the judgment by writ of execution and other procedures. Mercier responded that Stevens' affidavit failed to detail 1 the contract of employment he has with Southwestern Bell, 2 the amount charged for his services, 3 the number of hours expended in the case, or 4 the amount of attorney's fees Southwestern Bell has paid him for his services.

To the extent Stevens implies he entered into a contingency fee agreement with Southwestern Bell, he failed to present any evidence of such contract. Rule 1. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined. If there is to be a differentiation in the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, the percentage for each shall be stated.

The agreement shall state the litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. The absence of proof of a written contingency fee agreement creates an attendant circumstance surrounding the alleged existence of such an agreement. In light of the circumstances, we conclude Stevens' evidence was controverted and questionable. Thus, it did not rise to the level that would permit an award of attorney's fees as a matter of law under Ragsdale.

See Disbrow v. Healey , S. Homeowners' Ass'n v. Wilkes , S. Further, in Andersen , the supreme court held that a contingency fee agreement alone cannot support an award of attorney's fees.

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Arthur Andersen Co. The court explained that, while a contingent fee may be a reasonable fee from the standpoint of the parties to the contract, i. The court concluded that although a party's contingent fee agreement should be considered by the factfinder, a determination of the reasonableness of the fee must take into consideration the factors required by rule 1. Accordingly, we conclude the trial court erred in awarding Southwestern Bell's request for attorney's fees.

We affirm the trial court's order granting summary judgment in favor of Southwestern Bell and reverse and remand the award of attorney's fees to the trial court for proceedings consistent with this opinion. I concur in the judgment reached by the majority, but write separately because I would reach the same result for different reasons. The majority concludes that the trial court properly granted summary judgment in Southwestern Bell's favor because Mercier did not raise his affirmative defenses of fraud and failure of consideration in his response to Southwestern Bell's motion but instead, merely referenced the defenses in his affidavit, which was attached to his response as summary judgment evidence.

The majority concludes that Mercier "failed to expressly present the affirmative defenses in his written response. In McConnell , the supreme court stated that a non-movant's written response "must fairly apprise the movant and the court of the issues the non-movant contends should defeat the motion. Clear Creek Basin Authority , S. Garrod Invs. McCord v. I interpret these cases as standing for the proposition that a non-movant's response should simply put the movant on notice of the issues the non-movant is raising and that a reviewing court may not sift through the nonmovant's summary judgment evidence to determine if there may be other potential issues that were not raised by the non-movant.

Davis v.