COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01061-CV
AMERICAN 10-MINUTE OIL CHANGE, INC., FROM A DISTRICT COURT
BRICAR, INC., STEVEN J. SHIELDS,
E.M. DELOZIER, RALPH J. KAUFMANN,
DELF ANN DAWSON, MICHAEL A. HAMLIN,
CAREY MILLER AND BRIAN MILLER,
APPELLANT,
v.
METROPOLITAN NATIONAL BANK-
FARMERS BRANCH,
APPELLEE. OF DALLAS COUNTY, TEXAS
BEFORE JUSTICE HOWELL, LAGARDE AND WHITTINGTON
DISSENTING OPINION BY JUSTICE HOWELL
AUGUST 15, 1989
I dissent from the attorney's fee judgment. That aspect
should be reversed and remanded for trial upon its merits.
As stated in the majority's own authority:
The purpose of rule 166-A is to avoid the
conventional trial of clearly unmeritorious
claims or untenable defenses. Its purpose is
not to deprive litigants of their rights to a
full, conventional trial if there are involved
in the case any material questions of fact.
Ouerner Truck Lines v. Alta Verde Industries, 747 S.W.2d 464,
469 (Tex. App.—San Antonio 1988, no writ). It is further
well established that summary judgments are not granted by
default. Even though a motion for summary judgment is wholly
uncontroverted, a trial court possesses the discretion, and
even the obligation, to deny the motion unless he is
satisfied that the movant's claim is meritorious or the
opponent's position is untenable. We cannot override that
exercise and substitute our decision for the discretion of
the trial court.
It is well established that a trial court is presumed to
be an expert as to attorney's fees. In a conventional trial,
where the claimant has presented no evidence whatever upon an
attorney's fee claim, the trial court may nevertheless award
a fee based upon its own expertise and its knowledge of the
services rendered as disclosed by the proceedings in the
case. Conversely, it is equally well-settled that in a
conventional trial where the court is acting as the finder of
fact, he may award less than the fee placed in evidence by
the claimant even though the opponent offers no opposition as
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to amount. It is illogical to hold that a trial court, if,
as here, it is not convinced that the entire amount claimed
for attorney's fee is justified, has any less authority than
when he presides at a summary judgment hearing.
Of course, it is not the purpose of the summary judgment
rule to substitute trial by affidavit for a plenary trial
with live evidence, either with or without a jury in
attendance. In a conventional trial, if the trial court
awards a lesser fee than the one placed in evidence, the
claimant is bound by the trial court's holding, even though
the evidence was uncontroverted. In order to obtain relief
in the appellate court, he must show the judgment to be
legally or factually insufficient. The disappointed
attorney's fee claimant in a summary judgment hearing is more
fortunate. When the trial court below announced that it was
awarding less than the attorney's fee claimed, it was the
prerogative of appellee bank, as the summary judgment movant
to announce that it would not accept the award and to request
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that the attorney's fee claim be tried upon its merits.
Appellee may not cross-appeal the exercise of judicial
discretion by the court below in refusing to grant a summary
judgment for part of the recovery sought.
The ultimate reason that this Court is committing error
is because it is making an award that the trial court refused
to make. Our majority concedes that the trial court "could
have refused to award any attorney's fees" (slip op. 12). On
pure legal theory, the court probably erred in attempting to
award a lesser amount in order to expedite the disposition of
the case. However, the error was harmless. The reason:
because claimant bank was free to accept or refuse the award
proffered by the trial court. Certainly, the opposing party
had no grounds to complain because it had failed to
controvert the attorney's fee claim as to amount.
However, the error of the trial court is beside the
point. In final analysis, our majority has found no grounds
to increase the attorney's fee award other than the default
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of the opposing party. This, by all authorities, is
improper. Even further, our majority has, in effect, held
that a trial court is without discretion—that it was
mandatory that a default be imposed. Truly, we cannot
rectify trial court error by committing error of our own.
I therefore dissent as to the attorney's fee award. The
judgment should be reversed and remalid4d on this issue
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01061.DF