Bethel v. Norman Furniture Co., Inc.

OPINION ON REHEARING

Appellants have filed a motion for rehearing contending in one point of error that we erred in affirming the award of attorney’s fees that have been or will be incurred on appeal. Appellants contend that there are no pleadings or evidence to support such an award.

Appellees alleged attorney’s fees generally in the sum of “at least” $1,474.41. Appellants filed no special exceptions to this pleading and waived any defects therein. Tex.R.Civ.P. 90 and 91. Appellee’s pleadings are sufficient to support an award of attorney’s fees incurred on ap*9peal. Wolfe v. Speed Fab-Crete Corp. Int’l, 507 S.W.2d 276, 281 (Tex.Civ.App.—Fort Worth 1974, no writ).

Further, we hold that the trial court could take judicial notice of the contents of its file and the “usual and customary” attorney’s fee necessary for the prosecution of an appeal to this Court and the Texas Supreme Court “without receiving further evidence,” because the issue of attorney’s fees was tried to the court. Tex.Civ.Prac. & Rem. Code Ann. § 38.004 (Vernon 1986). It is presumed that “usual and customary” fees are reasonable. § 38.003. Nothing in the record rebuts this presumption; therefore, further evidence establishing reasonableness of the fees was not required. § 38.004.

Appellants’ sole point of error is overruled.

Accordingly, appellants’ motion for rehearing is denied.