Midland Western Building LLC v. First Service Air Conditioning Contractors,
Inc., No. 08-0504 (Tex. Nov. 20, 2009)(per curiam) (zero attorney's fees award by the jury not supported by
the evidence, attorney fee testimony, segregation of fees incurred against different parties)(new trial on
attorney's fees ordered)
The jury’s award of no fees, [...] was improper. First Service offered evidence of its
attorney’s fees and the value thereof. While the jury could have rationally concluded
that a reasonable and necessary fee was less than the amount sought, an award of no
fees was improper in the absence of evidence affirmatively showing that no attorney’s
services were needed or that any services provided were of no value.
MIDLAND WESTERN BUILDING L.L.C. v. FIRST SERVICE AIR CONDITIONING CONTRACTORS, INC.; from
Midland County; 11th district (11 06 00222 CV, ___ SW3d ___, 03 13 08)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion in pdf
View Electronic Briefs in 08-0504 MIDLAND WESTERN BUILDING L.L.C. v. FIRST SERVICE AIR
CONDITIONING CONTRACTORS, INC.
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Midland Western Bulding LLC v. First Service Air Conditioning Contractors, Inc.
(Tex. 2009)(per curiam)
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PER CURIAM
When Midland Western Building, L.L.C. allegedly failed to pay for air conditioning services
performed by First Service Air Conditioning Contractors, Inc., First Service sued Midland Western
on a sworn account. First Service sought at least $21,693.56, the principal amount due on the
account, plus attorney’s fees.
At trial, attorney Brian Carney testified that $24,000 to $26,000 was a reasonable fee for
preparing and trying the case, with an additional $7,000 to $10,000 for an appeal to the court of
appeals and $5,000 for an appeal to this Court. Carney had reviewed First Service’s legal bills
before testifying, but the bills themselves were not introduced into evidence. Midland Western cross-
examined Carney on the Arthur Andersen1 factors, and Carney admitted that some of the bills
involved work related to parties that were no longer in the case.
The jury awarded First Service $14,645.10 in damages but no attorney’s fees, and the trial court
signed a judgment in conformance with the verdict. First Service appealed, arguing that the trial court
erred in failing to award mandatory attorney’s fees because there was no evidence to support the
jury’s answer of zero attorney’s fees, and First Service conclusively established its reasonable and
necessary fees. The court of appeals, citing Ragsdale v. Progressive Voters League, 801 S.W.2d
880 (Tex. 1990), noted that the only evidence regarding attorney’s fees came from Carney, and “[w]
hen the evidence is not contradicted by another witness, or contradicted by circumstances, and it is
clear, direct, positive, and free from contradiction, inaccuracies, or circumstances that cast suspicion
on the evidence, it is taken as true as a matter of law.” ___ S.W.3d ___, ___. Concluding that Carney’
s testimony satisfied those requirements, the court of appeals reversed the trial court’s judgment on
attorney’s fees and rendered judgment for $24,000 in fees.
We recently decided Smith v. Patrick W.Y. Tam Trust, ___ S.W.3d ___ (Tex. 2009), in which we
held that an appellate court’s award of the full amount of fees requested, despite the jury’s rejection
of a substantial portion of the damages sought, was improper because the fee, even if supported by
uncontradicted testimony, was “unreasonable in light of the amount involved and the results obtained,
and in the absence of evidence that such fees were warranted due to circumstances unique to this
case.” Smith, ___ S.W.3d at ___. Thus, “the evidence did no more than raise a fact issue to be
decided by the jury.” Id. at ___.
Such is the case here. The court of appeals’ fee award was not supported by uncontradicted
testimony, as Carney admitted on cross examination that some of the fees involved claims against
parties other than Midland Western. Thus, fees could not be awarded as a matter of law. See id. at
___; Ragsdale, 801 S.W.2d at 882.
The jury’s award of no fees, however, was improper. First Service offered evidence of its attorney’
s fees and the value thereof. While the jury could have rationally concluded that a reasonable and
necessary fee was less than the amount sought, an award of no fees was improper in the absence of
evidence affirmatively showing that no attorney’s services were needed or that any services provided
were of no value. Smith, ___ S.W.3d at ___; Cale’s Clean Scene Carwash, Inc. v. Hubbard, 76 S.W.
3d 784, 787 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
Accordingly, First Service is entitled to a new trial on attorney’s fees.
We reverse the court of appeals’ judgment and remand the case to the trial court for a new trial on
attorney’s fees. Tex. R. App. P. 60.2(d)
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1 See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
OPINION DELIVERED: November 20, 2009.
Note: Key legal terms and phrases rendered in bold type and hyperlinks are not part of the opinion as issued
by the Texas Supreme Court