COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00142-CV
MICHAEL A. SMITH APPELLANT
V.
CINDY PENA APPELLEE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
TRIAL COURT NO. CV08-09-684
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MEMORANDUM OPINION 1
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Appellant Michael A. Smith, an attorney, sued Appellee Cindy Pena for
breach of a mediated settlement agreement. 2 Smith sought to compel Pena to
convey to him three acres of land in Wise County for $9,000 in accordance with
1
See Tex. R. App. P. 47.4.
2
See Pena v. Smith, 321 S.W.3d 755 (Tex. App.—Fort Worth 2010, no
pet.) (reviewing earlier proceedings related to the settlement agreement).
the agreement. At the time of the bench trial from which Smith appeals, Pena’s
daughter had become the court-appointed legal guardian of Pena’s person and
estate.
The trial court signed a judgment finding that Pena had breached the
settlement agreement and that Smith had sued her for specific performance,
divesting Pena and her guardian of ownership of the property, conveying the
property to Smith, and denying Smith any attorney’s fees. Smith appeals from
the denial of attorney’s fees.
In Pena’s appellee’s brief, she argues that Smith’s notice of appeal was
not timely. We address this argument first because it challenges this court’s
jurisdiction. 3 Although the trial was held on June 25, 2013, the judgment was not
signed until April 4, 2014. Smith’s notice of appeal was filed on April 30, 2014.
As such, his notice of appeal was timely filed. 4
Pena also raises issues in her appellee’s brief challenging the trial court’s
judgment granting specific performance to Smith and complaining of, among
other things, Smith’s failure to pay for the land as ordered by the trial court. She
3
See Tex. R. App. P. 25.1(b) (“The filing of a notice of appeal by any party
invokes the appellate court’s jurisdiction over all parties to the trial court’s
judgment or order appealed from.”).
4
See Tex. R. App. P. 26.1 (requiring a notice of appeal to be filed within
thirty days after the judgment is signed).
2
did not, however, file a notice of appeal. For that reason, we may not consider
her issues. 5
We now turn to Smith’s appeal. Smith’s brief does not contain a statement
of the issue or point on appeal. 6 His argument, however, makes clear that his
point is that the trial court abused its discretion by not awarding him attorney’s
fees.
Smith argues that an award of attorney’s fees was mandatory under civil
practice and remedies code section 38.001 7 and that Pena did not produce
evidence establishing that his requested fees were not reasonable. Smith does
not explain, however, how he met his burden of showing that the fees he
requested were reasonable. 8 He cites to no case law or statute explaining what
kind of evidence shows that fees are reasonable and necessary under section
38.001. The only authorities to which he cites are a case setting out the abuse of
5
See Tex. R. App. P. 25.1(c) (stating that “[a] party who seeks to alter the
trial court’s judgment or other appealable order must file a notice of appeal” and
that “[t]he appellate court may not grant a party who does not file a notice of
appeal more favorable relief than did the trial court except for just cause”
(emphasis added)).
6
See Tex. R. App. P. 38.1(f) (“The brief must state concisely all issues or
points presented for review.”).
7
See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 2015) (stating that
in a breach of contract case, “[a] person may recover reasonable attorney’s
fees”).
8
See id.
3
discretion standard, 9 section 38.001, and a case holding that an award of
attorney’s fees under a statute stating that a party “may recover” attorney’s fees
is not discretionary and then discussing the standards for an award of attorney’s
fees under the declaratory judgments act. 10 Even applying the standards for
proving a reasonable fee under the declaratory judgments act, 11 Smith does not
explain how the evidence at trial established the requested fees were reasonable
under the law. 12 And even if he had done so, Smith does not explain how he has
met the requirements for recovering attorney’s fees in breach of contract cases. 13
Accordingly, we cannot say that the trial court abused its discretion by denying
him attorney’s fees. 14 We overrule his sole issue.
9
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).
10
Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998).
11
See id. (referencing the Arthur Anderson factors that guide the
determination of the reasonableness of a fee). Cf. Tex. Civ. Prac. & Rem. Code
Ann. § 38.003 (West 2015) (providing a standard for determining a reasonable
fee in a breach of contract case).
12
See Tex. R. App. P. 38.1(i).
13
See MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660,
666 (Tex. 2009) (“To recover fees under this statute, a litigant must do two
things: (1) prevail on a breach of contract claim, and (2) recover damages.”
(emphasis added)).
14
See id.; see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881
S.W.2d 279, 284 (Tex. 1994) (stating that an appellate court has discretion to
waive point of error due to inadequate briefing).
4
Having overruled Smith’s sole issue on appeal, we affirm the trial court’s
judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
DELIVERED: June 25, 2015
5