Sufficiency of the
In her third
and fourth issues, Brockie complains that the evidence is legally and
factually insufficient to support the award of
Webb's unpaid attorney's fees and the award of additional attorney's fees
incurred in defending Brockie's counterclaim.
In reviewing a trial
court's findings of fact for legal and factual sufficiency of the evidence, we apply the same standards we apply in reviewing
the evidence supporting a jury's answer. Catalina v. Blasdel, 881 S.W.2d
295, 297 (Tex.1994). When the appellate record contains a reporter's record as
it does in this case, findings of fact are not conclusive on appeal if the
contrary is established as a matter of law or if there is no evidence to support
the findings. Material P'ships, Inc. v. Ventura, 102 S.W.3d 252, 257
(Tex.App.-Houston [14th Dist.] 2003, pet. denied).
When, as in this case,
the appellant is challenging the legal sufficiency of the evidence to support a finding on which it did not have the
burden of proof at trial, the appellant must demonstrate on appeal that no
evidence exists to support the adverse finding. Croucher v. Croucher, 660
S.W.2d 55, 58 (Tex.1983); Westech Eng'g, Inc. v. Clearwater Constructors,
Inc., 835 S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ). When reviewing
the record, we look to see whether any evidence supports the challenged finding.
BBQ Blues Texas, Ltd. v. Affiliated Business Brokers, Inc., 183 S.W.3d
543, 545 (Tex. App.-Dallas 2006, pet. denied). If more than a scintilla of
evidence exists to support the finding, the legal sufficiency challenge fails.
Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc.,
960 S.W.2d 41, 48 (Tex.1998); Westech Eng'g, 835 S.W.2d at
By contrast, when an
appellant challenges the factual sufficiency of the evidence on an issue on which it did not have the burden of proof, the
appellant must demonstrate the evidence is insufficient to support the adverse
finding. Westech Eng'g, 835 S.W.2d at 196. In reviewing this point, we
consider, weigh, and examine all the evidence presented at trial. Plas-Tex,
Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We set aside a
finding for factual insufficiency only if the evidence supporting the finding is
so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709
S.W.2d 175, 176 (Tex.1986) (per curiam).
In reviewing the sufficiency of
the evidence supporting an award of attorney's fees, we consider the following
the time and labor
required, the novelty and difficulty of the questions involved, and the skill
required to perform the legal service
the likelihood that the
acceptance of the particular employment will preclude other employment;
the fee customarily
charged in the locality for similar legal services;
the amount involved and
the results obtained;
the time limitations
imposed by the client or by the circumstances;
the nature and length of
the professional relationship with the client;
reputation, and ability of the lawyer or lawyers performing the services;
whether the fee is fixed
or contingent on results obtained or uncertainty of collection before
the legal services have been
See Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d
812, 818 (Tex. 1997). It is not necessary,
however, that the record include evidence on each of these factors. See
Burnside Air Conditioning v. T.S. Young, 113 S.W.3d 889, 897-98 (Tex.
App.-Dallas 2003, no pet.). Generally, the nature and extent of the attorney's
services are expressed by the number of hours and the hourly rate. Id.
However, there is no rigid requirement that these facts must be introduced into
evidence to support a finding that attorney's fees are necessary and reasonable.
Id; Hays & Martin, L.L.P. v. Ubinas-Brache, M.D., 192 S.W.3d
631,636 (Tex. App.-Dallas 2006, pet. denied). In Hays & Martin, this
Court affirmed an award of attorney's fees where the evidence did not include
evidence of the number of hours spent working on the case. Hays & Martin
L.L.P., 192 S.W.3d at 637. The attorney testified as to his hourly rate and
that of another partner who worked on the case. He testified that the case was
procedurally complicated and specified some of the work involved including
numerous discovery motions, responses to jurisdictional motions, and a
continuance. Id. We concluded that the factfinder had evidence upon which
to determine the reasonableness and necessity of the attorney's fees.
In its findings of fact,
the trial court found that Brockie “incurred $16,467.72 in unpaid attorney's fees, expenses, and costs, which were reasonable and
necessary for her representation by Brian L. Webb and the Firm in this divorce
matter.” The evidence presented in support of Webb's fees in its representation
of Brockie included an itemized bill setting forth the service, the person who
performed the service, and the hourly rate. Webb testified that he believed the
fees incurred in the representation of Brockie were both reasonable and
necessary. Webb also stated that the firm's fee agreement with Brockie provided
that she was to raise any concerns regarding a bill within thirty days of its
receipt. Brockie never questioned any bill. On cross-examination, Webb described
some of the services on the bill and explained the amount billed for such
We conclude the evidence
with respect to Brockie's unpaid attorney's fees was both legally and factually sufficient to support the trial court's
finding regarding same. Accordingly, we overrule Brockie's third
In her fourth issue,
Brockie asserts the evidence is legally and factually insufficient to support the trial court's award of additional attorney's
fees incurred by Webb in defending the counterclaim. With respect to these
attorney's fees, the trial court found that such fees in the amount of
$33,803.95 were reasonable and necessary.
Initially, Brockie argues
attorney's fees are not recoverable for defending against a counterclaim. To recover attorney's fees under section 38.001,
a party must prevail on a claim for which attorney's fees are recoverable. Tex.
Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 1997). Section 38.001 does not
provide for attorney's fees in the pure defense of a claim. However, if the
plaintiff's breach of contract claim and the defendant's counterclaim arise from
the same transaction and the same facts required to prosecute the claim are
required to defend against the counterclaim, then attorney's fees may be
appropriate. De La Rosa v. Kaples, 812 S.W.2d 432, 434 (Tex.App.-San
Antonio 1991, writ denied). In this case, Webb's claim and Brockie's
counterclaim arose from the same transaction and the same facts required to
prosecute the claim were also required to defend against the counterclaim.
Accordingly, we conclude attorney's fees incurred in defending the counterclaim
Brockie also contends
that Webb failed to properly present his claim to Brockie as required by statute. See Tex. Civ. Prac. & Rem.
Code Ann. § 38.002(2) (Vernon 1997). Webb testified at trial that his firm sent
several demand letters to Brockie prior to filing the petition in intervention.
The testimony was uncontroverted. Accordingly, we conclude that Webb properly
presented his claim to Brockie.
We turn now to the
sufficiency of the evidence to support the award of attorney's fees incurred in defending the counterclaim. Webb testified
that his firm hired another law firm to defend Webb against Brockie's
counterclaim. Webb sought to recover the attorney's fees charged by the other
law firm. Evidence as to this other law firm's fees is scant. Webb testified
that he incurred legal fees in the approximate amount of “$28,000 plus some
expenses that are estimated at $2,500.” When questioned as to what the estimated
expenses were for, Webb replied, “I'm not sure exactly what they are, it's the
estimate that was provided me; and with additional time, I've been told
approximately $35,000 will be an appropriate fee for them.” The only documentary
evidence of the amount owed to the other law firm is a Webb & Ackels, P.C.
bill to Brockie that lists an amount of $27,041.45 due to the other law firm
with a transaction date of July 30, 2006. Webb also testified that he believed
the fees incurred in defending Brockie's counterclaim were reasonable and
Webb presented some
evidence as to the fees it incurred in defending the counterclaim. However, we conclude Webb failed to present factually
sufficient evidence from which a factfinder could determine the reasonableness
and necessity of the fees incurred in defending the counterclaim. There is no
evidence of the number of hours expended working on the defense of the
counterclaim or the hourly rates charged therefore. There is no evidence of
specific services performed by the other law firm. There is no statement from
the law firm charging these fees and no testimony from the lawyers who performed
the services. The only evidence presented was a lump sum amount on Webb's bill
to Brockie and Webb's testimony that such fees were reasonable and necessary. In
light of these circumstances, we conclude the evidence is factually insufficient
to support the trial court's finding that such fees were necessary and
reasonable. See Hays & Martin L.L.P., 192 S.W.3d at 637. We sustain
Brockie's fourth issue.
We reverse the trial
court's award of attorney's fees in the amount of $33,803.95 and remand this issue to the trial court for proceedings
consistent with this opinion. See Bocquet v. Herring, 972 S.W.2d
19, 21-22 (Tex.1998) (if court finds evidence of attorney's fees insufficient,
it may remand for further proceedings). In all other respects, we affirm the
trial court's judgment.