law-cc-attorneys-fees | reasonable and necessary | statutory or contractual |
Attorney's Fees in Credit Card Suit
To recover attorney's fees under section 38.001, a party is required to recover actual damages.
Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 489-90 (Tex. App.--Houston [1st Dist.] 2006, pet. denied)
(citing Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997)). Because we reverse the trial court's
award of damages to Unifund, we also reverse the award of attorney's fees without addressing
Williams's arguments on this issue. See id.
Attorney's Fees for Quantum Meruit Recovery
The trial court awarded $ 5,038.22 to Unifund for reasonable statutory attorney's fees. Because Unifund's valid
quantum meruit claim is based on the rendition of services to McElroy, we affirm the award of statutory attorney's
fees in this case. See Tex. Civ. Prac. & Rem. Code Ann. §38.001(1) (Vernon 2008); Tuberquia v. Jamison &
Harris, No. A14-91-00055-CV, 1991 WL 260344, at *2 (Tex. App.-Houston [14th Dist.] December 12, 1991, no
writ) (not designated for publication) (recovery of statutory attorney's fees was proper under either breach of
contract or quantum meruit in suit to recover unpaid fees for services rendered); Rainbow Group, Ltd. v.
Johnson, No. 03-00-00559-CV, 2002 WL 1991141, at * 9-10 (Tex. App._Austin August 30, 2002, pet. denied)
(not designated for publication) (chapter 38 allows the recovery of attorney's fees under quantum meruit based
on an employee's act of making their services available according to an employer's request).
McElroy v. Unifund CCR Partners (Tex.App.- Houston [1st Dist.] Aug. 26, 2008)(Boyce)
(judgment in credit card debt suit affirmed, contract, quantum meruit, attorney's fees, business records affidavit)
Fee Factors: Reasonable and Necessary Attorney's Fees
American International Industries, Inc. v. Surgicare (Tex.App.- Houston [14th Dist.] July 17, 2008)(Keyes)
(indemnification for attorney's fees, establishing reasonable and necessary amount of fees)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Chief Justice Radack, Justices Keyes and Higley)
01-07-00116-CV American International Industries, Inc. v. Surgicare, Inc.
Appeal from 344th District Court of Chambers County
Attorney's Fees
Also in his fourth issue, Williams argues that Unifund was not entitled to attorney's fees because it did not present
the account to him for payment at least 30 days prior to filing suit. See Tex. Civ. Prac. & Rem. Code Ann. §
38.002 (Vernon 1997) (providing that "payment for the just amount owed must not have been tendered before
the expiration of the 30th day after the claim is presented"); see also id. § 38.001(8) (allowing party who prevails
on breach of contract claim to recover reasonable attorney's fees).
To recover attorney's fees under section 38.001, a party is required to recover actual damages. Cytogenix, Inc. v.
Waldroff, 213 S.W.3d 479, 489-90 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) (citing Green Int'l, Inc. v.
Solis, 951 S.W.2d 384, 390 (Tex. 1997)). Because we reverse the trial court's award of damages to Unifund, we
also reverse the award of attorney's fees without addressing Williams's arguments on this issue. See id.
Williams v. Unifund CCR Partners Assignee of Citibank, — SW3d —, 2008 WL 339855, at *4 (Tex.App.—Houston
[1st Dist.] Feb. 7, 2008, no pet. h.)(Plaintiff failed to produce the Card Agreement or any document that
established the agreed terms, including the applicable interest rate or the method for determining the applicability
and amount of finance charges.)
We sustain appellant's fourth issue as it relates to attorney's fees.
We hold that Citibank conclusively established that it was entitled to recover its attorney’s fees as awarded by the
trial court. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon Supp. 2007); see also Hackberry Creek
Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 56 (Tex. App.—Dallas 2006, pet.
denied). Duran v. Citibank (Tex.App.- Houston [1st Dist.] Mar. 20, 2008)(Taft)
(consumer credit, suit by creditor, summary judgment, attorney's fees, creditor prevails)
Counteraffidavit challenging reasonableness of rate did not establish alternative rate
Duran’s attorney, John Mastriani, filed an affidavit in which he stated that he is “familiar with the normal and
customary attorney fees for an action such as this” and opined that the fees charged ($150.00 per hour for
attorneys and $95.00 per hour for paralegals) were “outrageous and excessive.” However, Mastriani failed to
provide evidence of an alternative rate that he would deem reasonable and necessary or otherwise to controvert
Spencer’s affidavit with controverting evidence. Duran v. Citibank (Tex.App.- Houston [1st Dist.] Mar. 20, 2008)
(Taft)(consumer credit, suit by creditor, summary judgment, attorney's fees, creditor prevails)
Finally, Duran contends that a fact issue exists as to whether the attorney’s fees awarded to Citibank are reasonable and
necessary. Jennifer Spencer, attorney for Citibank, provided an affidavit in which she swore that she was “familiar with attorneys’
fees charged in the Harris County area in the year 2006,” that “firm attorneys and legal assistants have expended in excess of 76
hours in preparation of this case,” and that “a reasonable and customary charge for legal services performed to date on behalf of
Citibank in connection with this action is an amount in excess of $10,088.50.”
She further testified that “Citibank is entitled to recover reasonable and necessary attorneys’ fees in the amount of $5,000.00;
$5,000.00 if the case is appealed to the Texas Court of Appeals; and $5,000.00 if the case is appealed to the Texas Supreme
Court.” The court awarded $10,088.50 in attorney’s fees plus $5,000.00 additional for each of postjudgment motions, appeal to the
Court of Appeals, and appeal to the Texas Supreme Court.
Attorneys' Fees Stated as % of Amount Owing in Cardmember Agreement
Amex also appended the affidavit of Rhonda M. Ryemon, who attested that "a reasonable sum for attorney's
fees in this case is 15% of the unpaid balance, which is the sum of $5,501.28, which is allowed under the
Agreement." The Agreement states that if an unpaid account is referred to an attorney the cardholder agrees to
pay "all court costs plus attorney's fees of 15% of the then unpaid balance."
Winchek v. American Exp. Travel Related Servs. Co., 232 S.W.3d 197 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(Higley) (debt collection, credit card debt suit, summary judgment for creditor based on breach of contract
affirmed)
We conclude that Amex met its burden to show the fourth element of its claim, the damages sustained by
Winchek's breach. See Prime Products, 97 S.W.3d at 636.