In the Interest of Striegler

REYNOLDS, Chief Justice,

dissenting.

I am not convinced that there is any valid support for the award of attorney’s fees to Saundra Lou Striegler Ford. As a result, I would sustain Allan Ayers Striegler’s twelfth point of error, reform the judgment to eliminate the award of attorney’s fees, and affirm the judgment as reformed.

At the time the trial court rendered its judgment, section 14.33(c) of the Texas Family Code Annotated (Vernon Supp.1995) commanded the trial court to “order the obligor to pay the movant’s reasonable attorney’s fees ... unless the court makes a specific finding that the attorney’s fees ... need not be paid.”1 Thus, absent the specific finding, the court is required to order the payment of attorney’s fees, Matter of Marriage of Vogel, 885 S.W.2d 648, 651 (Tex.App.—Amarillo 1994, writ denied), provided it is evinced the fees are reasonable. Goudeau v. Marquez, 830 S.W.2d 681, 682-83 (Tex.App.—Houston [1st Dist.] 1992, no writ).

Historically, the testimony of an attorney as to the reasonableness of attorney’s fees has been considered to be the opinion of an expert witness. Conformably, in Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155, 161 (1945), the court characterized the testimony of a reasonable attorney’s fee by two practicing attorneys of long experience as “opinion evidence of expert witnesses.” Later, in Coward v. Gateway Nat. Bank of Beaumont, 525 S.W.2d 857, 858 (Tex.1975), the court viewed the testimony of a reasonable attorney’s fee by a member of the State Bar of Texas, engaged in private practice with a familiarity of fees charged in the type of litigation before the court, as an “expression of opinion by an expert witness.” Similarly, in Burleson v. Morse, 172 S.W.2d 361, 365 (Tex.Civ.App.—Galveston 1943, writ ref d w.o.m.), the court held that attorneys, who were shown to be specialists in the area of law at issue, were qualified to give their opinions as experts on the subject of a reasonable attorney’s fee.

Against this backdrop, Saundra pleaded for the recovery of reasonable attorney’s fees. To support the pleading, her attorney, Thomas J. Purdom, whom I judicially notice is certified in Family Law by the Texas Board of Legal Specialization, proposed to testify “on attorney fees.” Allan objected, and pointed out that in answer to interrogatories requesting the designation of “each person you expect to call as an expert or opinion witness including any lay opinion witness,” Saundra answered, “I do not expect at this time to call any expert witness,” and the answer was never supplemented. To the objection, Purdom responded, “That is probably right, Judge,” and added, “I think the court can take judicial notice of attorney’s fees.” Agreeing judicial notice could be taken of what was reasonable, the trial court expressed the thought that the “objection is good.” Thus, Purdom’s testimony was automatically excluded unless Saundra demonstrated good cause for its admission. Tex. R.Civ.P. 215(5); Sharp v. Broadway Nat. Bank, 784 S.W.2d 669, 671 (Tex.1990); E.F. Hutton & Co., Inc. v. Youngblood, 741 S.W.2d 363, 364 (Tex.1987).

Then, Purdom stated his need to get fact witnesses to testify to the number of hours. Again, Allan objected, stating that if the testimony “goes to attorney fees at all, it falls under the category of expert witness.” Nevertheless, the trial court, without making a specific finding of good cause to admit Pur*646dom’s testimony, allowed his testimony of the hours he spent, together with the exhibit 34, a computer compilation of the time spent, albeit the court refused to permit Purdom “to testify as an expert with regard to the reasonableness or necessity thereof.”

Afterwards, the court, reciting the hours Purdom expended, stated that judicial notice was taken of the usual and customary attorney’s fees in Lubbock County in arriving at the amount of attorney’s fees awarded to Saundra. As authority for the judicial notice, the court cited Texas Civil Practice & Remedies Code Annotated § 38.004 (Vernon 1986) and Texas Rules of Civil Evidence 201.

My brethren conclude that the court did not err in allowing Purdom’s evidence of the hours he expended in the cause and in awarding attorney’s fees, albeit they employ different rationale for their respective conclusions. Justice Boyd, the author of the lead opinion, considers that good cause existed because Saundra’s pleadings for an award of attorney’s fees had been on file for six years, Allan could reasonably anticipate an award of attorney’s fees, and Purdom’s evidence could not constitute an ambush or unfair surprise to him. However, neither the reality that Allan knew Saundra had pleaded for attorney’s fees so as to raise a trial issue, nor the absence of ambush or unfair surprise, constituted good cause for Saundra’s failure to identify Purdom and his exhibit in response to Allan’s discovery request. Sharp v. Broadway Nat. Bank, 784 S.W.2d at 671. Allan was entitled to prepare for trial upon Saundra’s assurance that neither an expert witness nor documentation prepared by the witness would be produced at trial. The fact that Purdom would testify only about attorney’s fees did not excuse his proper identification in discovery, and his evidence should not have been admitted. Id. at 671-72.

Justice Boyd also proposes that “to hold that an inadvertent failure to list an attorney of record as a witness on requested attorney’s fees would deprive the trial court of its ability to comply with the law,” i.e., section 14.33(c), the language which he seems to interpret as requiring a “mandatory award of attorney’s fees.” If so, I disagree with the interpretation, for by its language, the section vests the trial court with the discretion to find that attorney’s fees “need not be paid.” Furthermore, in the absence of any basis for the determination of the reasonableness of the fees, an award of attorney’s fees is not mandated. In any event, the inadvertent failure to list the attorney of record as a witness on requested attorney’s fees does not constitute good cause for allowing the undes-ignated attorney’s testimony, E.F. Hutton & Co., Inc. v. Youngblood, 741 S.W.2d at 364, and by disallowing the testimony, the court would comply with the discovery law.

Next, Justice Boyd, noting that the trial court cited section 38.004, supra, as authority for the award of attorney’s fees, seems persuaded that as in Budd v. Gay, 846 S.W.2d 521 (Tex.App.—Houston [14th Dist.] 1993, no writ), the trial court properly considered Purdom’s evidence of representation and took judicial notice of the usual and customary attorney’s fees without receiving further evidence. As further support for the persuasion, he quoted the language from Coward v. Gateway Nat. Bank of Beaumont, 525 S.W.2d at 859, for the holding that the trial court “may examine the case file and is to make a determination of the amount of attorney’s fees even if no other evidence is admitted.” I am not persuaded to that view for a number of reasons.

First, Purdom’s evidence was automatically excluded when Saundra failed to show good cause for its admission, rule 215(5), supra; Sharp v. Broadway Nat. Bank, 784 S.W.2d at 671; E.F. Hutton & Co., Inc. v. Youngblood, 741 S.W.2d at 364, and the court could not consider Purdom’s evidence of the hours expended. Second, the language quoted from Coward is inapplicable, for it was referenced to the Legislature’s providing that the amount prescribed in the minimum fee schedules shall be prima facie evidence of reasonable attorney’s fees, and minimum fee schedules are no longer a part of Texas jurisprudence. Third, and more important, the judicial notice of attorney’s fees authorized by section 38.004, supra, is, as held by the Coward court and acknowledged by Justice Boyd, applicable only to the causes of *647action listed in the preceding section 38.001;2 and, unlike the action brought on a contract in ⅛¾ neither the action for recovery on notes in Coward, nor the action regarding child support in this cause, is a section 38.001 claim. Consequently, the judicial notice authorized by section 38.004, supra, furnishes no basis to support the award of attorney’s fees.

Finally, Justice Boyd approves the trial court’s recitation of Texas Rules of Civil Evidence 201, the general “Judicial Notice of Adjudicative Facts” provision, as authority for the award of attorney’s fees. In considering the rule in an earlier appeal, we determined, in an opinion authored by Justice Boyd, that to be judicially noticed, an adjudicative fact must not be subject to reasonable dispute, must be capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned, and must be verifiable without the necessity of an assessment of the truth and veracity of an interested witness. First Nat. Bank of Amarillo v. Jarnigan, 794 S.W.2d 54, 61 (Tex.App.—Amarillo 1990, writ denied).

It long has been the rule that the reasonable value of an attorney’s services is a question of fact for determination by the trier of fact. In making the determination, the trier of fact may take into consideration the facts in relation to the services rendered, as well as the value made by the attorneys, albeit their testimony is opinion evidence which ordinarily is not conclusive. Gulf Paving Co. v. Lofstedt, 188 S.W.2d at 160-61. Accordingly, in this cause, as in an insurance case, the reasonableness of attorney’s fees is a question of fact, the determination of which must be supported by competent evidence, and not adjudicated on judicial knowledge without the benefit of evidence. Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901, 907 (Tex.1966). Thus, by their very nature, the amount and reasonableness of attorney’s fees in a contested child support proceeding do not fall within the definition of, and are not, adjudicative facts of which judicial notice may be taken.

In his concurring opinion, Justice Quinn reasons that attorney Purdom was speaking as a fact witness, and Allan’s objection to his ability to testify as an expert was unavailable to exclude his evidence. The rationale, I submit, is not well-founded.

As explicated in the forepart of this opinion, when Purdom called himself as a witness “on attorney’s fees,” Allan’s objection to his testimony because he was never designated as either an expert or fact witness was sufficient for the automatic exclusion of his testimony in the absence of good cause shown for its admission. Even though Allan considered that the testimony of the hours expended fell under the category of expert witness testimony, the reality that Purdom was never designated as a witness in any capacity automatically excluded his testimony regarding attorney’s fees, either as an expert witness, rule 215(5), supra; Sharp v. Broadway Nat. Bank, 784 S.W.2d at 671, or as a fact witness. Rule 215(5), supra; Alvarado v. Farrah Mfg. Co., Inc., 830 S.W.2d 911, 914 (Tex. 1992).

Moreover, in discovery proceedings, such as those involved in this cause, it is settled that an attorney who is to be called to testify to reasonable and necessary attorney’s fees is required to be designated in response to an interrogatory requesting the names of expert witnesses; and, if the attorney is not designated, he or she may not testify absent good cause shown. Sharp v. Broadway Nat. Bank, 784 S.W.2d at 670-72; E.F. Hutton & Co., Inc. v. Youngblood, 741 S.W.2d at 364. There can be no doubt that Purdom, particularly by virtue of his certification in Family Law, is especially qualified to express an expert opinion on the reasonableness of attorney’s fees in a child support proceeding, and appeared as an expert witness, not as a fact witness, for that purpose. Indeed, Purdom recognized that he appeared as an expert witness, for he informed the court, upon sustainment of Allan’s objection to his testimony, that he needed to get fact witnesses to *648testify to the number of hours. Therefore, when Purdom was not designated and his documentation was not identified in response to the interrogatory requesting the names of expert witnesses and documents prepared by experts, his evidence was, under Sharp and Youngblood, automatically excluded upon the objection made when good cause for its admission was not shown.

It follows that absent any admissible evidence of the amount and reasonableness of attorney’s fees and any basis upon which the court could take judicial notice of them, there is no support for the attorney’s fees awarded Saundra. I, therefore, would sustain Allan’s twelfth point of error and reform the judgment by eliminating the award of attorney’s fees to Saundra. Because my brethren have not done so, I respectfully dissent.

. The section authorizes the recovery of reasonable attorney's fees if the claim is for (1) rendered services, (2) performed labor, (3) furnished material, (4) freight or express overcharges, (5) lost or damaged freight or express, (6) killed or injured livestock, (7) a sworn account, or (8) an oral or written contract. Tex.Civ.Prac. & Rem. Code Annotated § 38.001 (Vernon 1986).