Affirm in part; Reverse and Remand in part; Opinion Filed January 30, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-01718-CV
WOODHAVEN PARTNERS, LTD., WH MANAGEMENT, INC., MARK JOHNS, PMR
PARTNERS I, LTD., SUNETICS INTERNATIONAL, L.P. A/K/A SUNETICS
INTERNATIONAL, INC., AND JCMJ VENTURES, L.L.C., Appellants
V.
SHAMOUN & NORMAN, L.L.P. F/K/A SHAMOUN, KLATSKY, NORMAN, Appellee
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-10-00907-C
OPINION
Before Justices FitzGerald, Lang, and Myers
Opinion by Justice Myers
This is an appeal from a summary judgment granted in favor of appellee, Shamoun &
Norman, L.L.P. f/k/a Shamoun, Klatsky, Norman, against appellants, Woodhaven Partners, Ltd.,
WH Management, Inc., Mark Johns, PMR Partners I, Ltd., Sunetics International, L.P. a/k/a
Sunetics International, Inc., and JCMJ Ventures, L.L.C. In six issues, appellants argue the trial
court erred by (1) striking a summary judgment affidavit filed by appellant Mark Johns; (2)
granting appellee’s traditional motion for summary judgment; (3) granting appellee’s no-
evidence summary judgment motion; (4) overruling appellants’ objections to the summary
judgment affidavit filed by C. Gregory Shamoun; (5) finding Mark Johns jointly and severally
liable with Sunetics International, Inc.; and (6) finding that appellee did not prove it was entitled
to the damages and attorneys’ fees awarded by the trial court. We affirm the trial court’s
judgment in part, and reverse and remand for further proceedings.
BACKGROUND AND PROCEDURAL HISTORY
This appeal arises from a lawsuit brought by appellee, a Dallas law firm, for non-payment
of various attorneys’ fees incurred during four legal matters. In April of 2007, appellee was
hired to represent appellant Sunetics International, Inc. (“Sunetics, Inc.,” unless otherwise
indicated), in a complex patent infringement case against Lexington Lasercomb I.P.A.G. and
Lexington International, L.L.C. (the “Sunetics litigation”). The agreement was signed by Mark
Johns, Sunetics, Inc.’s president and secretary. Also in April of 2007, appellee was hired to
represent appellant Woodhaven Partners, Ltd., in a real estate litigation and contract dispute
against Marlin Land Development, L.L.C. (the “Marlin litigation”). The agreement was signed
by Johns, the president of Woodhaven Partners. In August of 2007, appellants Woodhaven
Partners, Ltd., WH Management, Inc., PMR Partners I, Ltd., and Johns hired appellee to
represent them in litigation involving claims brought by Balch Springs Development II, L.P. (the
“Balch Springs litigation”). The agreement was signed by Johns as the authorized agent for
PMR Partners, Woodhaven, WH Management, and by Johns individually. The following April,
appellee was hired by Johns to represent him in proceedings involving the conservatorship of
Johns’s child (the “Johns custody litigation”).
On February 10, 2010, appellee brought suit against Woodhaven Partners, Ltd., Mark
Johns, WH Management, Inc., PMR Partners I, Ltd., Sunetics International, L.P., Sunetics
International, Inc., and JCMJ Ventures, L.L.C. (collectively, “appellants”) asserting causes of
action for sworn account, breach of contract, and, alternatively, promissory estoppel and
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quantum meruit, and fraud and fraud in the inducement, 1 based on appellants’ failure to pay
incurred attorneys’ fees pursuant to the retainer agreements. Appellants answered. Appellants
Mark Johns, Woodhaven Partners, Ltd., and WH Management counterclaimed against appellee
for breach of contract, negligence, negligent misrepresentation, fraud, violations of the Texas
Deceptive Trade Practices Act (DTPA), and breach of fiduciary duty, alleging that appellee
overcharged appellants for legal services:
[Appellants] would show that [appellants] and [appellee] entered into an
agreement whereby [appellee] agreed to provide legal services to [appellants] at a
reasonable rate. Notwithstanding this agreement, [appellee] overcharged
[appellants] for the legal services in issue, as the billings [appellants] received
from [appellee] were not proper and were not accurate causing damages to
[appellants] in excess of the minimum jurisdictional limits of this Court.
Appellants also alleged affirmative defenses of ratification, waiver, fraud, estoppel, laches,
unclean hands, set-off, prior material breach, and the economic loss rule.
On October 4, 2010, appellee filed a traditional and no-evidence motion for partial
summary judgment. The summary judgment motion was supported, in part, by an affidavit from
C. Gregory Shamoun, appellee’s president and managing partner. After various pleadings were
supplemented and amended by the parties, appellants filed their response to the motion for
summary judgment and objected to Shamoun’s affidavit. Affidavits from Mark Johns and Janet
Randle, one of the attorneys of record for appellants, were included with appellants’ response to
appellee’s summary judgment motion.
After another round of amended and supplemented pleadings, appellee filed, on April 19,
2011, an amended traditional and no-evidence motion for partial summary judgment. On May
11, 2011, along with their response to the amended motion for partial summary judgment,
appellants filed a “Supplement to All Existing Answers,” which purported to be a verified denial
1
The claims for fraud and fraudulent inducement were subsequently nonsuited.
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of appellee’s claim for suit on a sworn account. Appellee objected to and moved to strike Mark
Johns’s and Janet Randle’s affidavits.
On June 2, 2011, the trial court granted, in part, appellee’s amended motion for partial
summary judgment. The trial court sustained appellee’s objections to Johns’s affidavit and
overruled its objections to Janet Randle’s affidavit. The court then concluded that, given
deficiencies in appellee’s pleadings and proof, granting summary judgment against all appellants
would be reversible error. The trial court thus granted summary judgment as to all of appellee’s
claims against (1) Sunetics, Inc. for the Sunetics litigation, and all of its affirmative defenses and
counterclaims; (2) Woodhaven Partners for the Marlin litigation, and all of its affirmative
defenses and counterclaims; (3) Woodhaven Partners, WH Management, PMR Partners, and
Johns for the Balch Springs litigation, and all of their affirmative defenses and counterclaims;
and (4) Johns, individually, for the Johns custody litigation, and all of his affirmative defenses
and counterclaims. The trial court did not grant summary judgment against Johns for the
Sunetics litigation or against WH Management for the Marlin litigation. The trial court also
declined to award attorneys’ fees because it could not determine the appropriate amount of fees
to award, given that appellee’s “attorney’s fees affidavit involves fees against certain Defendants
against whom Judgment has not been achieved,” and that there was no “adequate segregation of
fees.”
After supplementing its Fourth Amended Petition on June 30, 2011, appellee filed a
second summary judgment motion. The motion sought attorneys’ fees and to hold Johns jointly
and severally liable with Sunetics, Inc. for the Sunetics litigation, and WH Management jointly
and severally with Woodhaven for the Marlin litigation. It was supported by an affidavit filed by
Shamoun, along with numerous attached documents. Appellee also provided a segregation of its
attorneys’ fees in the Marlin and Sunetics litigation, supported by a second Shamoun affidavit.
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In their response, appellants objected to Shamoun’s first affidavit and moved to strike certain
exhibits that accompanied the affidavit.
In the final judgment signed on September 29, 2011, the trial court granted appellee’s
second motion for summary judgment in its entirety. The court struck one sentence of the
Shamoun affidavit, but overruled all of appellants’ other objections. The court’s final judgment
found, inter alia, (1) against Sunetics, Inc. and Mark Johns, jointly and severally, for $244,732.95
in actual damages based on the Sunetics litigation, and $53,207.17 in attorneys’ fees; (2) against
Woodhaven Partners and WH Management, jointly and severally, for $61,163.46 in actual
damages attributable to the Marlin litigation, and $18,853.30 in attorneys’ fees; (3) against
Woodhaven Partners, WH Management, PMR Partners, and Mark Johns, jointly and severally,
for $11,102.38 in actual damages based on the Balch Springs litigation, and $11,546.41 in
attorneys’ fees; and (4) against Mark Johns, individually, for $89,773.89 in actual damages
attributable to the Johns custody litigation, and $23,456.65 in attorneys’ fees. Appellants filed a
motion for new trial that was overruled by operation of law, followed by the instant notice of
appeal.
DISCUSSION
1. Affidavit of Mark Johns
In their first issue, appellants argue that the trial court erred by striking the affidavit
testimony of Mark Johns because the testimony “was admissible under governing case law and
the applicable retainer agreements.”
Background
After appellee filed its traditional and no-evidence motion for summary judgment seeking
summary judgment as to its causes of action and appellants’ counterclaims, appellants’ response
included an affidavit from Mark Johns disputing the reasonableness and necessity of the
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attorneys’ fees that are the subject of this lawsuit. Appellee moved to strike paragraphs 4, 8, 12,
and 16 of the Johns affidavit as it applied to the reasonableness and necessity of the attorneys’
fees and services.
In each of the challenged paragraphs, Johns began by quoting the following language that
is found in all of the relevant retainer agreements between appellants and appellee:
For purposes of this Engagement Letter, the Engagement means rendering of
reasonable and necessary legal services including, without limitation, conducting
a preliminary investigation; drafting documents, correspondence and pleadings;
motion practice; conducting and defending discovery; attending mediation and
trial; and drafting settlement documents. Reasonable and necessary legal services
shall be those which [the client] and [appellee] decide are reasonable and
necessary to perform the Engagement. . . [EMPHASIS ADDED].
Johns stated that he did “not agree that the invoices sent in this case to me by [appellee] were all
for reasonable and necessary legal services that were reasonable and necessary to perform the
Engagement.” He then noted that appellee “agreed that ‘Reasonable and necessary legal services
shall be those which Client and [appellee] decide are reasonable and necessary,’” and added that
he did “not agree that the services provided by [appellee] were reasonable and necessary to
perform the Engagement in this matter.” He reviewed individual invoices for various legal
services, after which he stated that the claims did “not reflect invoices for the legal services I
believe were all reasonable and necessary,” and that he did not believe all of the services for
which he was billed by appellee “were reasonable and necessary services as reflected above.”
Appellee’s motion to strike argued that Johns is not an attorney and that his assertions
regarding the reasonableness and necessity of attorneys’ fees are not competent summary
judgment evidence. The trial court sustained appellee’s objections in its order partially granting
summary judgment, finding:
Plaintiff’s Objections to the Johns Affidavit are SUSTAINED. Plaintiff is correct
that Johns is not a competent or qualified witness to offer an expert opinion as to
the reasonableness and necessity of attorney’s fees. In that respect, Plaintiff’s
objection is SUSTAINED, and paragraphs 4, 8, 12, and 16 are struck as expert
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opinion evidence if being offered by Defendants to prove Plaintiff’s attorneys[’]
fees were not reasonable and necessary.
Standard of Review
Inclusion or exclusion of summary judgment evidence is a matter committed to the trial
court’s discretion. See United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997); All Am.
Tel., Inc. v. USLD Commc’ns, Inc., 291 S.W.3d 518, 528 (Tex. App.––Ft. Worth 2009, pet.
denied). We review a trial court’s ruling sustaining or overruling objections to summary
judgment evidence for an abuse of discretion. See All Am. Tel., 291 S.W.3d at 528; Bradford
Partners II, L.P. v. Fahning, 231 S.W.3d 513, 521 (Tex. App.––Dallas 2007, no pet.); Cantu v.
Horany, 195 S.W.3d 867, 871 (Tex. App.––Dallas 2006, no pet.). A trial court abuses its
discretion if its decision is arbitrary, unreasonable, and without reference to guiding principles.
See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). An appellate
court must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the
ruling. Id.
Analysis
Appellants argue that the Texas Supreme Court’s decision in Anglo-Dutch Petroleum
Int’l v. Greenberg Peden, P.C., 352 S.W.3d 445 (Tex. 2011), combined with the above-noted
terms of the retainer agreements between appellants and appellee, gave Mark Johns the right to
testify as to his determination of the reasonableness and necessity of legal services. In particular,
appellants cite this portion of the Anglo-Dutch Petroleum opinion:
Only reasonable clarity is required, not perfection; not every dispute over the
contract’s meaning must be resolved against the lawyer. But the object is that the
client be informed, and thus whether the lawyer has been reasonably clear must be
determined from the client’s perspective. Accordingly, we agree with the
Restatement (Third) of the Law Governing Lawyers that “[a] tribunal should
construe a contract between client and lawyer as a reasonable person in the
circumstances of the client would have construed it.”
Id. at 451 (quoting RESTATEMENT (THIRD) OF LAW GOVERNING LAWYERS, § 18(2)).
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There are several problems with this argument. To begin with, the issue in Anglo-Dutch
Petroleum was whether the fee agreement letter that the client accepted was with the law firm of
Greenberg Peden, P.C., or with the individual attorney, when the letter was written on firm
letterhead and signed on behalf of the firm. Id. at 446. The dispute, in other words, was whether
the attorneys’ fee agreement was ambiguous. Id. The concept of viewing the agreement from
the client’s perspective, as applied, concerned whether the facts and circumstances viewed from
the client’s perspective indicated he was contracting with the firm and not the individual lawyer.
Id. at 449–453. In the present case, neither party below raised an issue of ambiguity that would
require the fee agreements to be construed or interpreted by the court. Appellants are arguing,
instead, that Johns’s lay testimony is admissible in order to contest the reasonableness and
necessity of the attorneys’ fees in the underlying litigation. No reasonable interpretation of
Anglo-Dutch Petroleum supports such an argument.
Texas law is clear that “[t]he issue of reasonableness and necessity of attorney’s fees
requires expert testimony.” Twin City Fire Ins. Co. v. Vega–Garcia, 223 S.W.3d 762, 770–71
(Tex. App.––Dallas 2007, pet. denied); see also Phillips v. Phillips, 296 S.W.3d 656, 671 (Tex.
App.––El Paso 2009, pet. denied); Cantu v. Moore, 90 S.W.3d 821, 826 (Tex. App.––San
Antonio 2002, pet. denied); Woollett v. Matyastik, 23 S.W.3d 48, 53 (Tex. App.––Austin 2000,
pet. denied); Ogu v. C.I.A. Services, Inc., No. 01–09–01025–CV, 2011 WL 947008, at *3 (Tex.
App.––Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op.); Horvath v. Hagey, No. 03–09–
00056–CV, 2011 WL 1744969, at *9 (Tex. App.––Austin, May 6, 2011, no pet.) (mem. op.). An
attorney testifies as to reasonableness; the testifying attorney must be designated as an expert
before he or she testifies. See Lesikar v. Rappeport, 33 S.W.3d 282, 308 (Tex. App.––Texarkana
2000, pet. denied); see also Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d 144, 148
(Tex. App.––Houston [14th Dist.] 1986, no writ) (“An affidavit by an attorney representing a
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party in a suit, concerning an award of attorney’s fees, whether in support of or in contradiction
of an amount claimed to be reasonable, is admissible in a summary judgment proceeding and is
considered expert testimony.”). As a result, lay witness testimony regarding the reasonableness
and necessity of attorneys’ fees is not competent, admissible summary judgment evidence. See,
e.g., Cantu, 90 S.W.3d at 826 (non-attorney testified as to appellate attorneys’ fees; such
testimony did not constitute expert testimony and award of appellate attorneys’ fees reversed on
appeal); Woollett, 23 S.W.3d at 53 (a “layman’s unsupported assertion regarding reasonableness
and necessity for attorney’s fees does not support the payment of attorney’s fees from the
estate”); Ogu, 2011 WL 947008, at *3 (because counter-defendants, neither of whom were
attorneys, did not designate themselves or qualify as experts on issues concerning attorneys’
fees, trial court properly restricted their testimony concerning reasonableness and necessity of
attorneys’ fees); Horvath, 2011 WL 1744969, at *9 (lay witness’s testimony as to what she paid
her attorney was insufficient to support attorneys’ fee award); In the Interest of L.L., No. 04–08–
00911–CV, 2010 WL 2403579, at *8 (Tex. App.––San Antonio June 16, 2010, no pet.) (mem.
op.) (party’s testimony regarding her attorney’s hourly rate and amount she had paid did not
constitute expert testimony and trial court erred in awarding attorney’s fees based on her
testimony).
In his affidavit, Mark Johns purports to testify regarding the reasonableness and necessity
of attorneys’ fees and legal expenses in the underlying litigation. But Johns is not an attorney,
and he does not qualify as an expert on issues concerning attorneys’ fees. He offered conclusory
assertions without the support or analysis that must be performed by any witness testifying as to
the reasonableness and necessity of attorneys’ fees. Accordingly, because the testimony and
opinions proffered by Johns in paragraphs 4, 8, 12, and 16 of his affidavit are inadmissible and
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not competent summary judgment evidence, the trial court did not abuse its discretion by
sustaining appellee’s objections to Johns’s affidavit. We overrule appellants’ first issue.
2. Appellee’s Amended Traditional Motion for Partial Summary Judgment
In their second issue, appellants argue that the trial court erred by granting appellee’s
amended traditional motion for partial summary judgment because appellee did not prove it was
entitled to summary judgment as a matter of law, “given the questions of fact raised in Mark
Johns’s affidavit and Janet Randle’s affidavit as to [appellee’s] breach of contract on multiple
retainer agreements.” Appellee responds that the traditional summary judgment should be
affirmed as to its claims against appellants because it proved there was no genuine issue of
material fact regarding its cause of action for suit on a sworn account––one of the grounds on
which it moved for traditional summary judgment.
Standard of Review
We review the trial court’s summary judgment de novo. Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We apply the well-established standards for
reviewing summary judgments. See TEX. R. CIV. P. 166a(c), (i); Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310–11 (Tex. 2009) (no-evidence summary judgment standard of review); Nixon v.
Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985) (traditional summary judgment
standard of review). A traditional motion for summary judgment must show there is no genuine
issue as to a specified material fact and, therefore, the moving party is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c). For a defendant to prevail on a traditional motion for
summary judgment, he must either disprove at least one element of the plaintiff's claim as a
matter of law, or conclusively establish all elements of an affirmative defense. Friendswood
Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996); Kalyanaram v. Univ. of Tex. Sys.,
230 S.W.3d 921, 925 (Tex. App.––Dallas 2007, pet. denied). If the movant meets its burden,
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then and only then must the non-movant respond and present evidence raising a fact issue. See
Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999).
When, as in this case, multiple grounds for summary judgment are raised and the trial
court does not specify the ground or grounds relied upon for its ruling, we will affirm the
summary judgment if any of the grounds advanced in the motion are meritorious. Carr v.
Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Red Roof Inns, Inc. v. Murat Holdings, L.L.C., 223
S.W.3d 676, 684 (Tex. App.––Dallas 2007, pet. denied). The appealing party must show that
none of the proposed grounds is sufficient to support the judgment. See Star-Telegram, Inc. v.
Doe, 915 S.W.2d 471, 473 (Tex. 1995); Jones v. Hyman, 107 S.W.3d 830, 832 (Tex. App.––
Dallas 2003, no pet.). If an appellant does not challenge each possible ground on which
summary judgment could have been granted, we must uphold the summary judgment on the
unchallenged ground. See, e.g., Carter v. PeopleAnswers, Inc., 312 S.W.3d 308, 311 (Tex. App.
––Dallas 2010, no pet.); Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.––Dallas
2009, pet. denied).
Appellee’s Sworn Account Claim
In support of count one of its fourth amended petition that alleged suit on a sworn
account against appellants, including Mark Johns, based on the unpaid legal fees and expenses,
appellee filed a sworn account affidavit and verification from C. Gregory Shamoun, appellee’s
president and managing partner. Shamoun declared that, after “[a]ll just and lawful offsets,
payments and credits” were applied, appellee was owed $244,732.95 on the account for the
Sunetics litigation; $61,163.46 for the Marlin litigation; $11,102.38 for the Balch Springs
litigation; and $89,773.89 for the Johns custody litigation. Shamoun further declared that he had
personal knowledge of all the facts set forth in the petition and verification, that the facts
contained “therein and herein” were true and correct, and that the claims asserted were for work
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performed and were “just and true.” Attached to the affidavit are copies of lengthy billing
invoices from appellee that are itemized according to the date of each charge, the initials of the
individual (identified as “Staff”) who performed the service, a brief description of the work
performed, 2 the hours billed, the billing rate, and the charges.
Appellants’ Response
Along with their response to appellee’s amended motion for partial summary judgment,
appellants filed “Defendants’ Supplement to All Existing Answers,” which denied that appellants
are “indebted for the amount alleged in Plaintiff’s Fourth Amended Petition pursuant to Rules
93(10) and 185 of the Texas Rules of Civil Procedure.” Appellants quoted rules 93(10) and 185,
after which they denied “the sworn account made the basis of Plaintiff’s Fourth Amended
Petition pursuant to Rules 93(10) and 185 of the Texas Rules of Civil Procedure.” Appellants
then quoted rules 93(10) and 185 a second time. Appellants also supplied a “verification” from
Mark Johns which stated “that he has read the DEFENDANTS’ SUPPLEMENT TO ALL
EXISTING ANSWERS; and that the allegations contained in Paragraphs II and III are within his
personal knowledge and true and correct.”
Applicable Law
Rule 185 of the Texas Rules of Civil Procedure sets out the criteria for a suit on an
account and provides that an open account includes “any claim . . . for personal service
rendered.” See TEX. R. CIV. P. 185. The cause of action must be supported by the affidavit of
the party, his agent or attorney “taken before some officer authorized to administer oaths, to the
effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all
just and lawful offsets, payments and credits have been allowed.” Id.; Panditi v. Apostle, 180
2
As with the other revised billing invoices in this record, the descriptions in these line items are heavily redacted or “blacked out”
save for a few words generally describing the activity being performed––with the specific nature of the work performed being redacted.
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S.W.3d 924, 926 (Tex. App.––Dallas 2006, no pet.); see also Brumley v. Image Cleaners &
Laundry, Inc., No. 05–05–01478–CV, 2006 WL 1727753, at *2 (Tex. App.––Dallas June 26,
2006, no pet.) (mem. op.).
The rule “is a rule of procedure regarding the evidence necessary to establish a prima
facie right of recovery.” Panditi, 180 S.W.3d at 926. An open account “on which a systematic
record has been kept and is supported by an affidavit” is prima facie evidence of a claim. Id. A
plaintiff claiming a suit on a sworn account is not required to formally introduce the account as
evidence of the debt. Brown Found. Repair & Consulting, Inc. v. Friendly Chevrolet Co., 715
S.W.2d 115, 116 (Tex. App.––Dallas 1986, writ ref’d n.r.e.). This evidentiary presumption can
be destroyed, however, and the plaintiff forced to introduce proof of its claim, when a defendant
files a sworn denial of the plaintiff’s account supported by an affidavit denying the account as
required by rule 93(10). Powers v. Adams, 2 S.W.3d 496, 498 (Tex. App.––Houston [14th Dist.]
1999, no pet.) (citing Roberts Express, Inc. v. Expert Transp., Inc., 842 S.W.2d 766, 770 (Tex.
App.––Dallas 1992, no writ)); see TEX. R. CIV. P. 93(10). In the absence of a sworn denial
meeting the requirements of the rule, the account is received as prima facie evidence against the
party. Vance v. Holloway, 689 S.W.2d 403, 404 (Tex. 1985).
“An opponent that does not properly file a written denial under oath will not be
permitted to dispute the receipt of the services or the correctness of the charges” Andrews v. E.
Tex. Med. Ctr.-Athens, 885 S.W.2d 264, 267 (Tex. App.—Tyler 1994, no writ); see also
Huddleston v. Case Power & Equip. Co., 748 S.W.2d 102, 103–04 (Tex. App.—Dallas 1988, no
writ); Hinojosa Auto Body & Paint, Inc. v. Finishmaster, Inc., No. 03–08–00361–CV, 2008 WL
5210871, at *5 (Tex. App.—Austin, Dec. 12, 2008, no pet.) (mem. op.). Hence, he may not
“dispute the receipt of the items or services, or the correctness of the stated charges.” See Rizk v.
Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979).
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A sworn general denial does not constitute a denial of the account and is insufficient to
remove the evidentiary presumption created by a properly worded and verified suit on an
account. See Panditi, 180 S.W.3d at 927; Andrews, 885 S.W.2d at 267; Martinez v. Rio Grande
Steel, Ltd., No. 13–06–00097–CV, 2008 WL 668232, at *3 (Tex. App.—Corpus Christi Mar. 13,
2008, no pet.) (mem. op.); Chang Shun Chu v. Everbeauty, Inc., No. 05–10–01268–CV, 2011
WL 5926691, at *1 (Tex. App.––Dallas Nov. 22, 2011, no pet.) (mem. op.). The defendant’s
written denial must state more than a broad generalization that he “specifically denies” the sworn
account allegations; instead, the verified affidavit must address the facts on which the defendant
intends to rebut the plaintiff’s affidavit. Andrews, 885 S.W.2d at 268; Martinez, 2008 WL
668232, at *3.
In Andrews v. East Texas Medical Center, which is cited by appellee, the defendant
swore under oath that the sworn account “was not true in whole or in part.” 885 S.W.2d at 265.
The court of appeals found that this answer, “although verified, is no more than a verified
general denial,” and thus insufficient. Id. at 268. The court noted that “the purpose of a verified
specific denial is to point out the manner in which the plaintiff’s allegations within the petition
are not true. Otherwise neither the court nor the opposing party is apprised of the fact issue that
necessitates further litigation.” Id. at 267. Because the defendant’s answer “fail[ed] to address
the facts on which he intend[ed] to rebut the plaintiff’s affidavit,” the court concluded it did not
comply with rules 185 and 93(10), and, therefore, could not defeat summary judgment. Id. at
268.
Analysis
Relying in part on Andrews, appellee argues that appellants’ “Supplement to All Existing
Answers,” though verified, was nothing more than a “sworn general denial” and that appellants
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failed to meet the requirements of the rules of civil procedure. 3 Although they broadly challenge
appellee’s traditional summary judgment motion, appellants do not challenge all possible
grounds on which summary judgment could have been granted. In particular, appellants do not
address appellee’s sworn account claim––no argument, analysis, citation to legal authority, or
reference to the lengthy summary judgment record. 4 See TEX. R. APP. P. 38.1(i) (requiring an
appellant’s brief to contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and the record); Staton Holdings, Inc. v. Tatum L.L.C., 345
S.W.3d 729, 733 (Tex. App.––Dallas 2011, pet. denied); Jarvis, 298 S.W.3d at 313–14; see also
Haidar v. Nortex Found. Designs, Inc., 239 S.W.3d 924, 927 (Tex. App.––Dallas 2007, no pet.);
Scheler v. Smith, No. 05–08–01439–CV, 2010 WL 2978333, at *2 (Tex. App.––Dallas July 30,
2010, no pet.) (mem. op.). An appellant cannot negate all possible grounds upon which a
summary judgment could have been granted merely by declaring that the appeal is intended to
challenge all possible grounds. See Jarvis, 298 S.W.3d at 313 n.8. The appellant “must also
provide appropriate arguments within that issue negating all possible grounds upon which
summary judgment could have been granted.” See id. Appellants have not done this. Because
they failed to challenge appellee’s suit on a sworn account claim on appeal, we could affirm the
trial court’s traditional summary judgment in appellee’s favor on that basis alone. See Staton,
345 S.W.3d at 733; Jarvis, 298 S.W.3d at 314.
Nevertheless, we note that appellee’s sworn account affidavit attached to its petition
contains all of the necessary elements. See TEX. R. CIV. P. 185. The attached account invoices
3
In its amended traditional and no-evidence motion for partial summary judgment, appellee argued that because appellants failed to
file a sufficient verified denial in compliance with rules 185 and 93(10), and did not sufficiently deny the accounts on which the sworn account
claim was filed, there was no genuine issue of material fact regarding the suit on a sworn account claim. This motion was actually filed several
weeks before appellants’ “Supplement to All Existing Answers,” but there is no question that the sufficiency of appellants’ verified denial was
before the trial court. Appellants’ counsel acknowledged during oral argument that appellee challenged the sufficiency of the verified denial in
the trial court.
4
The three-volume electronic clerk’s record filed in this case includes over 3,000 pages.
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include information reflecting the date of each charge, initials of the individual who performed
the service, a brief description of the work performed, hours billed, the billing rate, and the
specific charges. Thus, appellee’s verified pleading was prima facie proof of appellants’ debts.
Appellants’ broad, generalized denial, proffered as a “verified denial,” did not constitute a proper
denial of the sworn account. It was, at most, a verified general denial, which is insufficient to
rebut the evidentiary effect of appellee’s sworn account pleadings and put appellee to its proof.
Additionally, “even when a defendant verifies its sworn denial to a suit on a sworn
account, a plaintiff may properly obtain summary judgment on its sworn account by filing ‘legal
and competent summary judgment evidence establishing the validity of its claim as a matter of
law.’” Andy’s Sunmart # 352, Inc. v. Reliant Energy Retail Services, L.L.C., No. 01–08–00890–
CV, 2009 WL 3673093, at *3 (Tex. App.––Houston [1st Dist.], Nov. 5, 2009, no pet.) (mem.
op.) (quoting PennWell Corp. v. Ken Assocs. Inc., 123 S.W.3d 756, 765 (Tex. App.––Houston
[14th Dist.) 2003, pet denied)); see also Prompt Prof’l Real Estate, Inc. v. RSC Equip. Rental,
Inc., 05–08–00398–CV, 2009 WL 1211810, at *2 (Tex. App.––Dallas May 5, 2009, no pet.)
(mem. op.) (citing PennWell, 123 S.W.3d at 765). Appellee did not move for summary
judgment solely on the pleadings; it also moved for summary judgment on the grounds it had
proven its entitlement to judgment as a matter of law based on the summary judgment evidence.
As part of its amended partial summary judgment motion, appellee included an affidavit from
Shamoun stating that the firm was hired to represent various appellants on several legal matters,
“including a custody dispute, real estate and contract disputes, and a complex patent
infringement case,” and that Mark Johns was appellee’s “primary contact and the corporate
representative of each of the entity Defendants, with whom [appellee] dealt relative to the
underlying litigation matters.” Shamoun declared that, exclusive of interest, a total principal
balance of $244,732.95 was due and payable for legal services furnished “to and for the Sunetics
–16–
Defendants”; $61,163.46 for legal services furnished “to and for the Marlin Defendants”;
$11,102.38 for legal services furnished “to and for the Balch Springs Defendants”; and
$89,773.89 for legal services furnished “to and for Johns.” The affidavit further stated that
appellee provided the “Sunetics Defendants,” “Marlin Defendants, “Balch Springs Defendants”
and Johns with “regular statements of account” that set forth the “time and expenses incurred in
rendering legal services” and that, on several occasions, it made demand on appellants for
payment on the outstanding balances due on these accounts, but appellants “failed and refused to
pay.” “All lawful offsets, payments and credits have been applied” to the accounts, and they
remain unpaid. Appended to the affidavit were, according to the affidavit, “original or exact
duplicates of the original” billing invoices. 5
In their response, apart from proclaiming that their verified denial was sufficient to defeat
appellee’s sworn account claim, appellants cited no competent summary judgment evidence in
response to appellee’s summary judgment evidence in support of its sworn account claim. See
Bich Ngoc Nguyen v. AllState Ins. Co., 404 S.W.3d 770, 776 (Tex. App.––Dallas 2013, pet.
denied) (nonmovant must refer specifically to evidence it claims raises a genuine issue of
material fact). Even if we assume appellants’ purported sworn denial of the accounts was
sufficient to force appellee to put on proof of its claims, it did not raise an issue of fact. See
United Bus. Machs. v. Entm’t Mktg., Inc., 792 S.W.2d 262, 264 (Tex. App.––Houston [1st Dist.]
1990, no writ) (buyer’s sworn denial, while destroying evidentiary effect of account and forcing
seller to put on proof, did not constitute any evidence in opposition to seller’s subsequent
summary judgment motion because pleadings are not summary judgment evidence). Therefore,
appellants failed to raise an issue of fact to defeat summary judgment, and the trial court properly
5
The invoices are redacted or “blacked out,” as noted earlier, to omit information regarding the specific nature of the work that was
performed.
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granted summary judgment, on appellee’s sworn account claim. We overrule appellants’ second
issue.
3. Appellee’s Amended No-Evidence Motion for Partial Summary Judgment
In their third issue, appellants contend the trial court erred by granting appellee’s no-
evidence motion for summary judgment as to appellants’ counterclaims for breach of contract,
negligence, negligent misrepresentation, fraud, DTPA, and breach of fiduciary duty, “given the
evidence presented by affidavit testimony of Mark Johns and Janet Randle.”
Standard of Review
A no-evidence motion for summary judgment under rule 166a(i) must challenge specific
elements of the opponent’s claim or defense on which the opponent will have the burden of proof
at trial. TEX. R. CIV. P. 166a(i). The opponent must then present summary judgment evidence
raising a genuine issue of material fact to support the challenged elements. Id. A genuine issue
of material fact exists if the non-movant produces more than a scintilla of evidence supporting
the existence of the challenged element. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148
S.W.3d 94, 99 (Tex. 2004).
Challenge to Damages Element for Each of the Counterclaims
In its amended traditional and no-evidence motion for partial summary judgment,
appellee argued, in part, that appellants’ counterclaims failed as a matter of law because there
was no evidence of recoverable damages for any of the counterclaims apart from attorneys’ fees,
which are not recoverable as damages in and of themselves. In particular, appellee cited excerpts
from Mark Johns’s deposition to argue that the only evidence of actual damages showed
appellants’ damages were based on attorneys’ fees, court costs, time, and effort spent defending
against appellee’s claims:
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Q. [APPELLEE’S TRIAL COUNSEL:] But the damages that you are––Sunetics
is claiming that my firm caused, is the attorney’s fees that you’re having Sunetics
is having to pay, correct?
A. [JOHNS:] Attorney’s fees, time, and effort.
****
Q. [APPELLEE’S TRIAL COUNSEL:] The damages you’ve incurred include
attorney’s fees and court costs; is that fair?
A. [JOHNS:] Yes, sir.
Q. They also include time spent; is that right?
A. Yes, sir.
In their response to the amended motion for partial summary judgment, appellants asserted:
Defendants argue herein that the motions should be denied on the grounds that
Plaintiff has not met its burden of establishing, as a matter of law, that they are
entitled to prevail on summary judgment, as questions of material fact as to: (1)
which parties were signatories to the contracts in question; and (2) which, if any,
party breached the agreement first; and (3) the amount of monies, if any, owed.
They also argued:
There are genuine issues of material fact as to whether the Plaintiff breached the
agreement by failing to submit invoices to each Defendant timely, whether those
invoices reflected the reasonable services decided on by both Defendant and
Plaintiff as required by each agreement, whether the Defendants being sued on
said agreement were in fact parties to the agreement, and whether the Plaintiff
who signed the agreement is in fact the same plaintiff in this action, or has the
same rights as the Plaintiff who signed the agreements in question.
Appellants, however, did not address appellee’s contentions regarding damages or attempt to
substantiate the “actual damages” elements of their counterclaims, and on appeal they fail to
point to any damages they suffered as a result of appellee’s conduct––apart from the incurring of
attorneys’ fees and legal expenses.
Attorneys’ Fees Not Recoverable as Damages
Texas law distinguishes between the recovery of attorneys’ fees as actual damages and
recovery of attorneys’ fees incident to the recovery of other actual damages. Worldwide Asset
–19–
Purchasing, L.L.C. v. Rent–a–Center East, Inc., 290 S.W.3d 554, 570 (Tex. App.––Dallas 2009,
no pet.). A party may recover attorneys’ fees only as provided by contract or statute. Id.;
Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 898 (Tex.
App.––Dallas 2003, no pet.). As a general rule, attorneys’ fees are not recoverable as damages
in and of themselves. See, e.g., Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80, 82 (Tex.
2003); Imagine Automotive Group, Inc. v. Boardwalk Motor Cars, L.L.C., 356 S.W.3d 716, 718
(Tex. App.––Dallas 2011, no pet.); Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 521 (Tex.
App.––Houston [1st Dist.] 2009, pet. denied); Worldwide Asset Purchasing, 290 S.W.3d at 570;
see also Quest Communications Int’l, Inc. v. AT & T Corp., 114 S.W.3d 15, 35–36 (Tex. App.––
Austin 2003) (damages measured by plaintiff’s attorneys’ fees recoverable only under certain
exceptions not implicated here), rev’d in part on other grounds, 167 S.W.3d 324 (Tex. 2005)
(per curiam).
A party relying on assertions of non-recoverable damages alone, such as attorneys’ fees
and expenses sustained in defending a lawsuit and prosecuting a counterclaim, has presented a
legal barrier to any recovery. See Tana, 104 S.W.3d at 82 (damages described in terms of “value
of time spent” and “costs incurred” in defending lawsuit were non-recoverable, even if party
seeking such damages could have proven all other elements of claim for tortious interference);
Eberts v. Businesspeople Personnel Servs., Inc., 620 S.W.2d 861, 863 (Tex. Civ. App.––Dallas
1981, no writ) (“[e]xpenses of litigation are not recoverable as damages unless expressly
provided by statute or contract,” and “[t]his rule applies to a litigant’s loss of time”); Phillips v.
Latham, 523 S.W.2d 19, 27 (Tex. Civ. App.––Dallas 1975, writ ref’d n.r.e.) (“the only time lost
from work by either of the plaintiffs . . . was time lost because of the pendency of the lawsuit,
such as that required for depositions and attendance at the two trials in this case. This loss is an
expense of litigation. We know of no authority supporting recovery of actual damages for such a
–20–
loss . . . .”); see also Haden v. David J. Sacks, P.C., 222 S.W.3d 580, 597 (Tex. App.––Houston
[1st Dist.] 2007 (op. on reh’g), rev’d on other grounds, 266 S.W.3d 447 (Tex. 2008) (per
curiam). This is true even if all other elements of the party’s claim are proven. See Tana, 104
S.W.3d at 82; Consumer Portfolio Servs, Inc. v. Obregon, No. 13–09–00548–CV, 2010 WL
4361765, at *9 (Tex. App.––Corpus Christi Nov. 4, 2010, no pet.) (mem. op.).
Breach of Contract
To recover on any of their counterclaims––breach of contract, negligence, negligent
misrepresentation, fraud, DTPA, and breach of fiduciary duty––appellants had to establish
damages, among other elements. Beginning with breach of contract, the elements of a breach of
contract claim are (1) the existence of a valid contract; (2) performance or tendered performance
by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff
resulting from that breach. Haden, 332 S.W.3d at 521–22 (quoting Wright v. Christian & Smith,
950 S.W.2d 411, 412 (Tex. App.––Houston [1st Dist.] 1997, no writ)); see also Domingo v.
Mitchell, 257 S.W.3d 34, 39 (Tex. App.––Amarillo 2008, pet. denied). A party may recover
attorneys’ fees in a breach of contract claim without an agreement providing for them if the party
claiming the fees (1) prevails on its breach of contract claim and (2) recovers damages. See TEX.
CIV. PRAC. & REM. CODE ANN. § 38.002; Haden, 332 S.W.3d at 522.
Negligence and Negligent Misrepresentation
A negligence claim against an attorney requires proof that (1) the attorney owed the
plaintiff a duty; (2) the attorney’s negligent act or omission breached that duty; (2) the breach
proximately caused the plaintiff’s injury, and (4) the plaintiff suffered damages. See Akin,
Gump, Strauss, Hauer & Feld. L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 112
(Tex. 2009). The elements of negligent misrepresentation are: (1) a defendant provided
information in the course of his business, or in a transaction in which he had a pecuniary interest;
–21–
(2) the information supplied was false; (3) the defendant did not exercise reasonable care or
competence in obtaining or communicating the information; (4) the plaintiff justifiably relied on
the information; and (5) the plaintiff suffered damages proximately caused by the reliance.
Larsen v. Carlene Langford & Assocs., 41 S.W.3d 245, 249–50 (Tex. App.––Waco 2001, pet.
denied); see McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787,
791 (Tex. 1999).
Fraud, DTPA, and Breach of Fiduciary Duty
To establish a claim for fraud, the proof must establish a material misrepresentation,
which was false, and which was either known to be false when made or was asserted without
knowledge of the truth, which was intended to be acted upon, which was relied upon, and which
caused injury. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990). Attorneys’ fees
are not recoverable as actual damages in fraud cases. Haden, 332 S.W.3d at 519.
To establish a claim for violations of the DTPA, a plaintiff must show he sustained
damages. See TEX. BUS. & COM. CODE ANN. § 17.50(a) (requiring that defendant’s act constitute
a producing cause of economic or mental anguish damages); Latham v. Castillo, 972 S.W.2d 66,
69 (Tex. 1998) (stating elements of claim for unconscionable conduct recovery under DTPA,
including damages pursuant to section 17.50(a)); see also Haden, 332 S.W.3d at 519. “In a
DTPA claim, ‘[w]ithout an actual-damages recovery, a party is not entitled to an attorney’s fee
recovery.’” Haden, 332 S.W.3d at 519 (quoting Gulf States Util. v. Low, 79 S.W.3d 561, 567
(Tex. 2002)).
To recover for breach of a fiduciary duty, the evidence must show
the existence of a fiduciary duty, breach of the duty, causation, and damages. Id. (quoting
Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503, 508 (Tex. App.––Houston [1st Dist.] 2003, no
pet.)). Clients who sue their attorney for breach of fiduciary duty “need not prove actual
–22–
damages in order to obtain forfeiture of an attorney’s fees for the attorney’s breach of fiduciary
duty to the client.” Burrow v. Arce, 997 S.W.2d 229, 240 (Tex. 1999); see also Haden, 332
S.W.3d at 520. This exception arises when the complaining party seeks forfeiture of fees paid to
counsel who breaches a fiduciary duty. Haden, 222 S.W.3d at 596 n.13. In that instance, the
complaining party need not produce evidence of actual damages. See id. But appellants did not
assert this type of damages in their pleadings or in their response to the amended motion for
partial summary judgment. See Burrow, 997 S.W.2d at 240; Bailey v. Gallagher, 348 S.W.3d
322, 325 n.2 (Tex. App.––Dallas 2011, pet. denied); Si Kyu Kim v. Harstan, Ltd., 286 S.W.3d
629, 635 n.1 (Tex. App.––El Paso 2009, pet. denied); Longaker v. Evans, 32 S.W.3d 725, 733
n.2 (Tex. App.––San Antonio 2000, pet. withdrawn). Consequently, the exception does not
apply in this case.
Analysis
Appellee contends that the record in this case does not contain any competent summary
judgment evidence that appellants incurred or would incur recoverable damages for any of their
counterclaims. In their brief, appellants argue that the Mark Johns and Janet Randle affidavits––
cited in their third issue––raise an issue of fact as to whether appellee breached the retainer
agreements, and/or its duty to keep appellants informed, thereby precluding, at a minimum,
summary judgment on appellants’ breach of contract counterclaim. But appellants do not
support their assertion with any substantive argument, analysis, citation to legal authority, or
reference to the summary judgment record. See TEX. R. APP. P. 38.1(i); In re Estate of Miller,
243 S.W.3d 831, 840 (Tex. App.––Dallas 2008, no pet.) (issue waived because appellant did not
analyze legal authority and made “no suggested application of it to the facts”); In re B.A.B., 124
S.W.3d 417, 420 (Tex. App.––Dallas 2004, no pet.) (“failure to adequately brief an issue, either
by failing to specifically argue and analyze one’s position or provide authorities and record
–23–
citations, waives any error on appeal”); see also Haidar, 239 S.W.3d at 927; Scheler, 2010 WL
2978333, at *2. Issues raised on appeal, but not briefed, are waived. See, e.g., Haidar, 239
S.W.3d at 927.
Furthermore, assuming appellants’ argument was not waived, the summary judgment
evidence in this case shows that the only damages stated by appellants consist of legal fees and
expenses they incurred in defending against this lawsuit brought by appellee and in prosecuting
their counterclaims. Well-settled law recognizes that attorneys’ fees and expenses are not
recoverable as damages in and of themselves. See, e.g., Tana, 104 S.W.3d at 82; Haden, 332
S.W.3d at 521. Additionally, appellants did not seek the forfeiture of paid attorneys’ fees as
damages or establish any other type of compensable damages for their breach of fiduciary duty
counterclaim. See Burrow, 997 S.W.2d at 240. For these reasons, we conclude the trial court
properly granted no-evidence summary judgment in appellee’s favor based on the absence of a
genuine issue of material fact regarding the damages element of appellants’ counterclaims. See
W. Invs. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (we will affirm summary judgment if any of
the grounds alleged in the summary judgment motion are meritorious). We overrule appellants’
third issue. 6
4. Affidavit of C. Gregory Shamoun
In their fourth issue, appellants argue that the trial court erred by overruling appellants’
objection to the affidavit of C. Gregory Shamoun and accompanying exhibits, and subsequently
allowing into evidence “hearsay and inadmissible redacted entries of attorney billings from
which no evidence of work was able to be determined for purposes of reasonableness of services
to support [appellee’s] traditional summary judgment.” Appellants specifically challenge the
6
The trial court also granted summary judgment for appellee on appellants’ affirmative defenses of ratification, waiver, fraud,
estoppel, laches, unclean hands, set off, prior material breach, and the economic loss rule. Appellants do not raise any of these issues on appeal.
Accordingly, we do not address them. See TEX. R. APP. P. 38.1(i).
–24–
following documents attached to Shamoun’s affidavit: (1) redacted invoices for legal services
and (2) information obtained over the internet from the Texas Secretary of State and Nevada
Secretary of State websites.
Background
The trial court initially granted appellee’s amended motion for partial summary judgment
on all of appellee’s causes of action, and ruled against appellants on their affirmative defenses
and counterclaims. The trial court, however, did not grant summary judgment in its entirety
against all appellants, nor did it award attorneys’ fees. Appellee then filed a second motion for
partial summary judgment arguing that Johns should be held individually liable under Texas law
for the unpaid legal services and costs associated with the Sunetics litigation, and that WH
Management should be jointly and severally liable as a general partner of Woodhaven, against
whom summary judgment had already been granted, for the unpaid legal services and costs
associated with the Marlin litigation. The second summary judgment motion also segregated
appellee’s section 38.001 attorneys’ fees for the current lawsuit.
Appellee’s second partial summary judgment motion included two additional affidavits
from Shamoun––attached to the motion as exhibits “A” and “4.” Only one of these affidavits,
exhibit A, is challenged on appeal. 7 In the exhibit A affidavit, after stating he had “personal
knowledge of all facts set forth herein,” Shamoun attested that he was the firm’s president and
managing partner and had care, custody, and control of the documents attached to the affidavit,
which he alleged were “the original or exact duplicates of the original.” 8 Those documents
7
When they objected to Shamoun’s affidavit in the trial court, appellants did not specify whether they were objecting to the exhibit A
affidavit, the exhibit 4 affidavit, or both. On appeal, however, appellants limit the discussion in their brief to the exhibit A affidavit and
accompanying documents. They do not challenge the other Shamoun affidavit, exhibit 4, which is discussed in part six of this opinion.
Consequently, to the extent appellants are contending they objected in the trial court to the exhibit 4 affidavit, and that the trial court erred by
overruling those objections, that issue has been waived for inadequate briefing. See TEX. R. APP. P. 38.1(i).
8
Paragraph 2 of the affidavit reads as follows:
–25–
included lengthy attorneys’ fee invoices and billing statements for the Sunetics and Marlin
litigation, attached to the affidavit as exhibits A-2, A-3, A-5, and A-6. Exhibit A-2 contained
two revised invoices totaling $244,732.95 in unpaid bills for legal services provided to Sunetics,
Inc.––charges that Shamoun stated were attributable to the Sunetics litigation. Exhibit A-5
contained a revised invoice for $61,163.46 in unpaid charges for legal services provided to
Woodhaven Partners and WH Management––charges that Shamoun attested were attributable to
the Marlin litigation. Each invoice was itemized according to the date of the charge, a brief
description of the charge, the billable hours, the billing rate, and the specific charge. As with the
invoices that accompanied appellee’s verified petition, the descriptions in these documents of the
work performed were redacted or “blacked out” save for a few words describing the activity
being performed, e.g. “draft and revise,” “review,” “teleconference,” “research,” “copying,”
“filing,” etc., with the specific nature of the work performed being redacted. Exhibits A-3 and
A-6 contained, among other documents, unrevised invoices for the Sunetics and Marlin
litigation; the descriptions in these documents of the work performed were entirely redacted.
Also attached to Shamoun’s exhibit A affidavit, as exhibits A-10, A-11, and A-12, were
documents obtained over the internet from the websites for the Texas Secretary of State and the
Nevada Secretary of State. These documents were offered in support of appellee’s argument that
Johns should be held individually liable under section 171.255 of the Texas Tax Code, which
imposes a corporation’s liability on the corporation’s directors and officers during a period of
forfeiture of corporate privileges and for failing to file franchise reports. See TEX. TAX CODE
I have been and am the president of the managing partner of Shamoun & Norman, LLP f/k/a Shamoun Klatsky Norman
(“S&N”), Plaintiff in the above-styled suit. I have care, custody, and control of records concerning the accounts of each of
the various Defendants in the above-styled and numbered cause. Attached hereto are 221 pages of records from S&N.
These said 221 pages of records are kept by S&N in the regular course of business, and it was the regular course of
business of S&N for an employee or representative of S&N, with knowledge of the act, event, condition, opinion, or
diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was
made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of
the original.
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ANN. § 171.255. Appellee argued that, based on this statute, Johns should be held individually
liable for the unpaid legal fees and costs associated with the Sunetics litigation. The last two
paragraphs of the affidavit, which discuss the Secretary of State documents, assert that appellee
used public information obtained only and directly from the Texas Secretary of State and Nevada
Secretary of State websites and online record repositories, and that this information was retrieved
by “competent computer operators who followed careful procedures by printing” the images of
the websites directly to a printer.
Appellants’ Objections
In their “Objection to Affidavit of C. Gregory Shamoun and Accompanying Exhibits,”
part of appellants’ response to appellee’s second motion for partial summary judgment, they
brought the following objections:
Defendants object to the Affidavit of C. Gregory Shamoun because Mr.
Shamoun does not establish a foundation for testifying as to the work performed.
He merely states that he is the managing partner of the firm in question but has no
testimony regarding his work with the client during the period in question. In
addition, Plaintiff objects to the legal conclusions regarding “jointly and
severally” as there is no such language in the contract, and Mr. Shamoun is
testifying as to legal conclusions that are contradicted by the express language of
the contract. As such, his affidavit lacks the proper foundation to testify as to the
reasonableness and necessity of the work provided, and as to any intent on the
part of any defendant to be jointly and severally liable for any work. The
contracts at issue speak for themselves, and Plaintiff objects to the “parole”
evidence Mr. Shamoun attempts to proffer in his affidavit.
Appellants also objected to exhibits A-2, A-3, A-5, and A-6 and moved to strike them because
they were “redacted,” thus making the exhibits “void of any content and insufficient to establish
the reasonableness of any work or time worked.”
On appeal, appellants contend Shamoun’s affidavit “did not lay a proper foundation for
Mr. Shamoun to authenticate the exhibits that were attached.” They argue Shamoun was “an
interested witness” and that his testimony “was of such a nature that it could not be readily
contradicted if untrue, given the redacted state of the billing.” Appellants further argue
–27–
Shamoun’s affidavit was “self-serving” because “[h]is testimony is based upon redacted billing
entries. . . that were impossible for the Court to read much less evaluate.” Appellants also take
issue with Shamoun’s assertion that the billing records attached to the affidavit are “the original
or exact duplicates of the original.” Appellants claim the documents “do not reflect the legal
services, as they are completely redacted.” 9
When appellants objected to Shamoun’s affidavit in the trial court, they did not argue he
was an interested witness. An objection asserting that an affiant is an interested witness is an
objection to a defect in the form of an affidavit, and must be preserved in the trial court. See
Strother v. City of Rockwall, 358 S.W.3d 462, 468–69 (Tex. App.––Dallas 2012, no pet.); Four
D Constr., Inc. v. Util. & Envtl. Servs., Inc., No. 05–12–00068–CV, 2013 WL 2563785, at *2
(Tex. App.––Dallas June 7, 2013, no pet.) (mem. op.); see also Ahumada v. Dow Chem. Co., 992
S.W.2d 555, 562 (Tex. App.––Houston [14th Dist.] 1999, pet. denied). A party must object in
writing and obtain an express or implied ruling from the trial court to preserve a complaint about
the form of summary judgment evidence. Grand Prairie I.S.D. v. Vaughan, 792 S.W.2d 944,
945 (Tex. 1990); Strother, 358 S.W.3d at 468–69. Because appellants did not do this, their
argument was not preserved for appellate review. See, e.g., Strother, 358 S.W.3d at 468–69;
Four D Constr., 2013 WL 2563785, at *2.
As for appellants’ other arguments, they objected to Shamoun’s affidavit, both in the trial
court and on appeal, on the grounds it did not establish a foundation for testifying as to the work
performed by appellee. An objection that an affidavit failed to establish the basis for an affiant’s
9
The trial court sustained one of appellants’ trial objections, striking “sentence 3 of paragraph 3 as to the ‘jointly and severally’
language therein.” The sentence read as follows: “S&N rendered legal services to the Sunetics Defendants jointly and severally pursuant to
S&N’s agreement with the Sunetics Defendants and in full performance of such agreement.” The ruling is not challenged on appeal.
Additionally, we note that appellants’ “Objection to Affidavit of C. Gregory Shamoun and Accompanying Exhibits” also objected to
exhibits A-10, A-11, and A-12, the Secretary of State documents. Because of our conclusion in part five of this opinion reversing and remanding
the portion of the trial court’s judgment holding Mark Johns jointly and severally liable for the $244,732.95 in underlying attorneys’ fees and
expenses attributable to the Sunetics litigation, the only issue raised on appeal for which the Secretary of State documents have any relevance, we
will not address appellants’ objections to those exhibits. See TEX. R. APP. P. 47.1 (opinion must address issues “necessary to final disposition of
the appeal”).
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personal knowledge of the facts asserted in the affidavit goes to the substance, not the form, of
the affidavit, and need not have been raised in the trial court. See Stone v. Midland Multifamily
Equity REIT, 334 S.W.3d 371, 375 (Tex. App.––Dallas 2011, no pet.); City of Wilmer v. Laidlaw
Waste Sys. (Dallas), Inc., 890 S.W.2d 459, 467 (Tex. App.––Dallas 1994), aff’d, 904 S.W.2d
656 (Tex. 1995).
In the exhibit A affidavit, Shamoun stated that he had personal knowledge of all facts set
forth in the affidavit, and that he had care, custody, and control of the records attached to the
affidavit. He did not detail his work for the clients during the periods in question. But he stated
that he was appellee’s managing partner, that appellee was hired by Sunetics, Inc. and Johns to
represent them during the Sunetics litigation, and by Woodhaven Partners and WH Management
to represent them during the Marlin litigation, that the legal services were provided pursuant to
the specific fee agreements, and that appellee provided the legal services reflected in the attached
invoices. The revised invoices, furthermore, although heavily redacted, contained line-by-line
itemizations of the various charges together with brief descriptions of each charge. Contrary to
the suggestion in appellants’ brief that these invoices were “completely redacted,” significant
information was provided regarding the activities conducted by appellee during the underlying
litigation. We conclude that the affidavit demonstrated a sufficient basis for Shamoun’s personal
knowledge regarding the facts alleged. See Hydroscience Technologies, Inc. v. Hydroscience,
Inc., 401 S.W.3d 783, 791–92 (Tex. App.––Dallas 2013, pet. denied) (for summary judgment
affidavit to have probative value, affiant must swear facts in the affidavit reflect his personal
knowledge; references to true and correct copies of documents in support of an affidavit can
establish personal knowledge); Valenzuela v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550,
552 (Tex. App.––Houston [14th Dist.] 2010, no pet.) (affiant’s position or job responsibilities
can qualify him to have personal knowledge of facts and establish how he learned of the facts).
–29–
Hence, the trial court did not abuse its discretion by overruling appellants’ objections. We
overrule appellants’ fourth issue.
5. Mark Johns’s Joint and Several Liability
In their fifth issue, appellants contend the trial court erred by finding Mark Johns jointly
liable with Sunetics, Inc. for the Sunetics litigation attorneys’ fees and expenses because the
evidence was insufficient to establish Sunetics, Inc.’s violation of any law.
At issue is the part of the trial court’s final judgment finding Johns, as an individual,
jointly and severally liable with Sunetics, Inc. for the $244,732.95 in actual damages attributable
to the Sunetics litigation, together with reasonable and necessary attorneys’ fees and costs and
pre and post-judgment interest. In its second motion for partial summary judgment, appellee
argued that Johns, as the president and secretary of Sunetics, was jointly and severally liable for
its debts because of Sunetics, Inc.’s forfeiture of corporate privileges (i.e., “Johns is jointly and
severally liable for the debts of Sunetics, Inc. as a result of Sunetics, Inc.’s forfeiture of corporate
privileges under Texas Tax Code § 171.255.”).
Section 171.255 provides:
(a) If the corporate privileges of a corporation are forfeited for the failure to file a
report or pay a tax or penalty, each director or officer of the corporation is liable
for each debt of the corporation that is created or incurred in this state after the
date on which the report, tax, or penalty is due and before the corporate privileges
are revived. The liability includes liability for any tax or penalty imposed by this
chapter on the corporation that becomes due and payable after the date of the
forfeiture.
(b) The liability of a director or officer is in the same manner and to the same
extent as if the director or officer were a partner and the corporation were a
partnership.
(c) A director or officer is not liable for a debt of the corporation if the director or
officer shows that the debt was created or incurred: (1) over the director’s
objection; or (2) without the director’s knowledge and that the exercise of
reasonable diligence to become acquainted with the affairs of the corporation
would not have revealed the intention to create the debt.
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(d) If a corporation’s charter or certificate of authority and its corporate
privileges are forfeited and revived under this chapter, the liability under this
section of a director or officer of the corporation is not affected by the revival of
the charter or certificate and the corporate privileges.
TEX. TAX CODE ANN. § 171.255; Trammell v. Galaxy Ranch School, L.P., 246 S.W.3d 815, 821–
22 (Tex. App.––Dallas 2008, no pet.).
The problem with appellee’s reliance on this statute is that, as appellee acknowledged in
its second motion for partial summary judgment, Sunetics, Inc. filed its articles of incorporation
in Nevada on March 3, 2005. As part of its summary judgment motion, appellee cited various
provisions of the Nevada Revised Statutes to argue that Nevada law, like Texas, requires
corporations to file annual forms that include the names and addresses of officers and directors.
See NEV. REV. STAT. § 78.150. This “annual list” must be filed “on or before the last day of the
month in which the anniversary date of incorporation occurs each year.” Id. § 78.150(2). Failure
to file the annual forms results in revocation of the corporate charter and a forfeiture of its right
to transact business. See id. § 78.175(2). Moreover a document from the Nevada Secretary of
State that is part of appellee’s summary judgment proof––a “Certificate of Existence With Status
of Revocation” for Sunetics, Inc.––shows that Sunetics failed to timely file its annual list or pay
the required fee, and that it was in “revocation” under Nevada law as of April 1, 2010, for failing
to file the annual list of officers and directors and designated agent for the period March 2009 to
March 2010, as required by the Nevada Revised Statutes. See id. §§ 78.150, 78.175.
In Tri-State Building Specialties, Inc. v. NCI Building Systems, L.P., 184 S.W.3d 242
(Tex. App.—Houston [1st Dist.] 2005, no pet.), the court concluded that section 171.255 of the
Texas Tax Code did not apply to a corporation whose privileges were suspended in another state
for nonpayment of taxes in that jurisdiction. Id. at 251–52. The court noted that “[i]t is well-
settled that section 171.255 must be strictly construed to protect those individuals against whom
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liability is sought because it is penal in nature and cannot be extended beyond the clear meaning
of its language.” Id. at 251. The court then stated:
Chapter 171 of the Tax Code, of which section 171.255 is part, governs
franchise taxation in Texas. Franchise taxes governed by that chapter are taxes on
the privilege of transacting business within Texas. As Texas courts have
recognized, section 171.255 is a revenue measure, the purpose of which is to
enforce collection of Texas franchise taxes.
Although not expressly stated in Chapter 171, it is logical that subsection
171.255(a) applies only to corporations that have failed to file a report or to pay a
tax or penalty as required by Texas law. That is, it follows that subsection 171.
255(a) applies when a corporation has its corporate privileges forfeited in Texas,
not in California. Here, NCI has not shown that subsection 171.255(a) applies to
Tri–State, a California corporation, whose corporate rights and privileges were
suspended by California authorities for noncompliance with California tax laws.
In addition, NCI has not offered any evidence showing that Tri–State’s corporate
privileges have been forfeited by Texas authorities for non-compliance with
Texas tax law. Thus, we conclude that NCI did not meet its burden to show that
Hollister and Bush are personally liable pursuant to Texas Tax Code subsection
171.255(a) for NCI’s claims against Tri–State.
Id. (internal citations omitted); see also In re Dodgin, No. 05–21729–RLJ–13, 2006 WL
3069714, at *4 (Bankr. N.D. Tex. Oct. 26, 2006) (New Mexico law determined liability of
officers and directors, not section 171.255, where the charter of a New Mexico corporation was
revoked by the State of New Mexico for failing to pay franchise taxes).
In a more recent case, Widner Product Finishing Co. v. Southwood Door Co., No. 03–
10–00188–CV, 2012 WL 677495, at *4 (Tex. App.—Austin 2012, pet. filed) (mem. op.), the
plaintiff argued that a director and officer of a Mississippi corporation that should have
registered to do business in Texas was personally liable for the corporation’s debts. The court
concluded that section 171.255 of the Tax Code imposes personal liability on directors and
officers only when there is an actual forfeiture of corporate privileges under the Texas Tax Code.
Id. Since the Mississippi corporation in Widner never had any corporate privileges in Texas,
there was nothing to forfeit and personal liability could not be imposed under section 171.255:
–32–
Southwood simply never had corporate privileges in Texas, so we cannot treat it
as though it had (and forfeited) corporate privileges. Southwood may have
forfeited corporate privileges in its home state of Mississippi, but section 171.255
applies only when a corporation has forfeited its privileges in Texas. Id. Because
Southwood never had corporate privileges in Texas, Texas Tax Code section
171.255 cannot apply to the case at bar.
Id.
In the present case, appellee did not contend Nevada law held Johns personally liable. As
in their brief on appeal, their summary judgment argument in the trial court regarding Johns’s
joint and several liability was premised on section 171.255. But appellee has not shown that
section 171.255 applies to Sunetics, Inc., a Nevada corporation that was in “revocation” for
noncompliance with Nevada laws according to the Nevada Secretary of State’s “Certificate of
Existence With Status of Revocation.” In addition, there is no summary judgment evidence of
which we are aware showing that Sunetics, Inc.’s corporate privileges were forfeited by Texas
authorities for non-compliance with Texas law. Based on the record before us, we conclude
appellee did not meet its burden of showing that Mark Johns is personally liable pursuant to
section 171.255. See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993) (stating
that appellate courts can affirm summary judgment based only on a ground expressly stated in
the motion for summary judgment granted by the trial court); Shih v. Tamisiea, 306 S.W.3d 939,
946 (Tex. App.––Dallas 2010, no pet.) (noting that court could not consider appellees’ argument
“because it was not raised below and an appellate court can affirm a summary judgment only on
the grounds expressly set out in the motion.”). Accordingly, we sustain appellants’ fifth issue, in
part. We reverse the portion of the trial court’s judgment holding Mark Johns jointly and
severally liable for the $244,732.95 in legal fees and expenses attributable to the Sunetics
litigation, and remand for further proceedings.
6. Appellee’s Damages and Attorneys’ Fees
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In their sixth issue, appellants contend the trial court erred by granting appellee’s
traditional summary judgment motion because appellee did not prove it was entitled to summary
judgment regarding the amount of damages and attorneys’ fees awarded by the court, “given the
redacted state of its attorney fee billings and the evidence of unreasonable legal services
presented by the Affidavits of Mark Johns and Janet Randle.”
Appellee’s Damages
The damages sought by appellee in its fourth amended petition were liquidated damages.
A claim is liquidated if the amount of damages may be accurately calculated by the trial court
from the factual, as opposed to the conclusory, allegations in plaintiff’s petition and the
instrument in writing. See, e.g., Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex. App.––
Houston [14th Dist] 2001, no pet.) (suit to recover amount due for professional services was a
liquidated claim proven by written invoices attached to original petition); Mantis v. Resz, 5
S.W.3d 388, 392 (Tex. App.––Fort Worth 1999, pet. denied), overruled on other grounds,
Sheldon v. Emergency Med. Consultants, 43 S.W.3d 701 (Tex. App.––Fort Worth 2001, no pet.)
(in a suit on a sworn account, the petition with an attached sworn account and verified affidavit
of the account was a liquidated claim proved by written instruments); Harris, N.A. v. Obregon,
No. 05–10–01349–CV, 2013 WL 3524153, at *4–5 (Tex. App.––Dallas July 11, 2013, no pet.)
(mem. op.) (damages for suit on a sworn account claim were liquidated because pleading
provided requisite factual allegations to prove plaintiff’s claim). The liquidated damages
claimed by appellee were established as a matter of law. See TEX. R. CIV. P. 93(10), 185.
Consequently, appellants’ argument that appellee did not prove it was entitled to summary
judgment regarding the amount of actual damages awarded by the trial court is unpersuasive.
Section 38.001 Attorneys’ Fees
–34–
As for attorneys’ fees, the general rule is that litigants in Texas are responsible for their
own attorneys’ fees and expenses in litigation. Ashford Partners, Ltd. v. ECO Res., Inc., 401
S.W.3d 35, 41 (Tex. 2012). Under Texas law, a court may award attorneys’ fees only when
authorized by statute or by the parties’ contract. MBM Fin. Corp. v. Woodlands Operating Co.,
292 S.W.3d 660, 669 (Tex. 2009). Whether a party is entitled to seek an award of attorneys’ fees
is a question of law that we review de novo. Holland v. Wal–Mart Stores, Inc., 1 S.W.3d 91, 94
(Tex. 1999).
In its amended motion for partial summary judgment, and its second motion for partial
summary judgment filed after the trial court declined to grant summary judgment as to certain
claims and parties, appellee argued it was entitled to attorneys’ fees pursuant to section
38.001(7), (8) of the Texas Civil Practice and Remedies Code. Section 38.001 provides, in part,
that a party may recover attorneys’ fees from an individual or a corporation, in addition to the
amount of a valid claim and costs, if the claim is for a suit on a sworn account or for an oral or
written contract. TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(7), (8). To recover attorneys’
fees under section 38.001, the plaintiff must (1) prevail on a cause of action for which attorneys’
fees are recoverable and (2) recover damages. Green Int’l v. Solis, 951 S.W.2d 384, 390 (Tex.
1997).
Texas law does not require detailed billing records or other documentary evidence as a
prerequisite to awarding attorneys’ fees. See, e.g., Tex. Commerce Bank, Nat’l Ass’n v. New, 3
S.W.3d 515, 517–18 (Tex. 1999) (per curiam); Save Our Springs Alliance, Inc. v. City of
Dripping Springs, 304 S.W.3d 871, 892–93 (Tex. App.—Austin 2010, pet. denied); In re A.B.P.,
291 S.W.3d 91, 99 (Tex. App.—Dallas 2009, no pet.); Jarvis, 298 S.W.3d at 319. “It has
consistently been held that an attorney’s testimony about his experience, the total amount of fees,
and the reasonableness of the fees charged is sufficient to support an award.” Metroplex Mailing
–35–
Servs., L.L.C. and Jesse R. Marion v. RR Donnelley & Sons Co., 410 S.W.3d 889, 900 (Tex.
App.––Dallas 2013, no pet.) (citing In re A.B.P., 291 S.W.3d at 99).
Shamoun’s Attorneys’ Fees Affidavit
As we previously noted, appellee’s second partial summary judgment motion was
supplemented by two Shamoun affidavits. One, attached to the motion as exhibit A, discussed,
among other matters, the liability of Johns, individually, for the legal services, expenses and
costs associated with the Sunetics litigation, and the liability of WH Management for legal
services, expenses and costs associated with the Marlin litigation. The other affidavit, exhibit 4,
which, as we have already noted, is not challenged on appeal, segregated the section 38.001
attorneys’ fees claimed by appellee in the instant case. Paragraph six of this affidavit asserts:
I have worked on litigation matters in the past that have involved the same or
similar issues as those that exist in the case at bar. I have reviewed and am
familiar with all of the pleadings in this case. I have reviewed and am familiar
with all of the discovery conducted and produced in this case. I have personal
knowledge of the activities conducted in this case since its inception. I have also
reviewed the applicable billing statements accrued by Plaintiff throughout this
suit.
Shamoun segregated appellee’s attorneys’ fees for the Sunetics, Balch Springs, Marlin, and
Johns custody litigation as follows: $53,207.17 was attributed to Sunetics, Inc. and Mark Johns
for the Sunetics litigation; $11,546.41 to Woodhaven Partners, Ltd., WH Management, Inc.,
PMR Partners, and Mark Johns for the Balch Springs litigation; $18,853.30 to Woodhaven
Partners, Ltd. and WH Management, Inc. for the Marlin litigation, and $23,456.65 to Mark Johns
for the custody litigation. Shamoun concluded with a case-by-case summary of what he believed
were reasonable and necessary attorneys’ fees recoverable in this suit. He alleged that appellee
would incur an additional $20,000 in reasonable and necessary attorneys’ fees in the event of an
appeal to the court of appeals, $10,000 for an unsuccessful petition for review to the Texas
Supreme Court, and $15,000 for full briefing and argument to the Texas Supreme Court.
–36–
Shamoun asserted that all of these fees were reasonable and necessary and that his opinion on the
reasonableness and necessity of the fees was based on the Arthur Andersen factors, which he lists
in the affidavit. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.
1997) (providing a non-exclusive list of factors for the factfinder to consider when determining
the reasonableness of a fee).
No Controverting Summary Judgment Evidence
Appellants failed to controvert this testimony or provide any controverting summary
judgment evidence regarding the attorneys’ fees requested by appellee. The reasonableness and
necessity of attorneys’ fees, as we discussed earlier, requires expert testimony. See, e.g., Twin
City Fire Ins., 223 S.W.3d at 770–71. Yet Mark Johns, who is not an attorney, could not testify
regarding the reasonableness and necessity of attorneys’ fees, and appellants withdrew their
designations of their two expert witnesses “as to testimony regarding the attorneys’ fees in this
case.” 10 Because appellants failed to raise an issue of fact regarding appellee’s section 38.001
attorneys’ fees, the trial court did not err by awarding the attorneys’ fees sought by appellee.
But all fee claimants must segregate attorneys’ fees between claims for which they are
recoverable and claims for which they are not. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d
299, 311 (Tex. 2006). We have already determined that we must reverse and remand the portion
of the trial court’s judgment holding Johns jointly and severally liable with Sunetics, Inc for the
$244,732.95 in actual damages attributable to the Sunetics litigation. The trial court, moreover,
held Mark Johns jointly and severally liable with Sunetics, Inc. for the $53,207.17 in attorneys’
10
Appellants originally designated their lead attorney, Evan Lane (Van) Shaw, to testify regarding issues of attorneys’ fees in this
case. Appellants subsequently designated their other attorney, Janet Randle, to also testify regarding attorneys’ fees. On March 5, 2011, in a
supplemental response to appellee’s requests for disclosure, appellants answered “[n]one at this time” regarding their testifying experts. In a
subsequent March 29 “De-designation of Expert Witnesses,” appellants stated that they “hereby de-designate Van Shaw and Janet Randle as
expert witnesses in this case.” Appellants then proffered the affidavit of Janet Randle and attached materials as testimony in support of their
response to appellee’s amended motion for partial summary judgment (filed May 11, 2011). At the same time, they filed a “First Supplement to
Defendants’ De-designation of Expert Witnesses” that sought to amend their prior de-designation of expert witnesses as follows: “Defendants
hereby de-designate Van Shaw and Janet Randle as expert witnesses in this case only as to testimony regarding the attorneys’ fees in this case.”
Appellee moved to strike appellants’ supplement along with its objections to Janet Randle’s affidavit. In its order granting partial summary
judgment, the trial court overruled appellee’s objections to the Randle affidavit and denied the motion to strike.
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fees and costs, and appellee’s summary judgment proof does not segregate those fees as to the
two defendants. We thus sustain appellants’ sixth issue as to the $53,207.17 in section 38.001
attorneys’ fees and costs attributable to the Sunetics litigation and remand that issue to the trial
court for further proceedings. In all other respects, appellants’ sixth issue is overruled.
CONCLUSION
We affirm the trial court’s judgment in part, and reverse and remand it in part. We
reverse the portion of the trial court’s judgment holding Mark Johns jointly and severally liable
with Sunetics, Inc. for the $244,732.95 in actual damages attributable to the Sunetics litigation,
and awarding appellee $53,207.17 in attorneys’ fees and costs, together with pre and post-
judgment interest. We remand those issues to the trial court for further proceedings. The
remainder of the trial court’s judgment is affirmed.
111718F.P05
/Lana Myers/
LANA MYERS
JUSTICE
–38–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WOODHAVEN PARTNERS, LTD., WH On Appeal from the County Court at Law
MANAGEMENT, INC., MARK JOHNS, No. 4, Dallas County, Texas
PMR PARTNERS I, LTD., SUNETICS Trial Court Cause No. CC-10-00907-C.
INTERNATIONAL, L.P. A/K/A Opinion delivered by Justice Myers.
SUNETICS INTERNATIONAL, INC., Justices FitzGerald and Lang participating.
AND JCMJ VENTURES, L.L.C.,
Appellants
No. 05-11-01718-CV V.
SHAMOUN & NORMAN, L.L.P. F/K/A
SHAMOUN KLATSKY NORMAN,
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s
judgment holding appellant Mark Johns jointly and severally liable with appellant Sunetics
International, Inc. for the $244,732.95 in actual damages and $53,207.17 in attorneys’ fees and
costs, together with pre and post-judgment interest. In all other respects, the trial court’s
judgment is AFFIRMED. We REMAND this cause to the trial court for further proceedings.
It is ORDERED that appellee SHAMOUN & NORMAN, L.L.P. F/K/A SHAMOUN
KLATSKY NORMAN recover its costs of appeal from appellants WOODHAVEN PARTNERS,
LTD., WH MANAGEMENT, INC., MARK JOHNS, PMR PARTNERS, I, LTD., SUNETICS
INTERNATIONAL, L.P. A/K/A SUNETICS INTERNATIONAL, INC., AND JCMJ
VENTURES, L.L.C.
Judgment entered this 30th day of January, 2014.
/Lana Myers/
LANA MYERS
JUSTICE
–39–
Woodhaven Partners, LTD v. Shamoun & Norman, LLP F/K/A Shoumoun Klatsky Norman
Combined Opinion