ACCEPTED
06-15-00061-cv
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/18/2015 11:05:02 AM
DEBBIE AUTREY
CLERK
NO. 06-00061-CV
IN THE SIXTH COURT OF APPEALS FOR THE STATE OF TEXAS
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
12/18/2015 11:05:02 AM
A.J.P. OIL COMPANY, LLC d/b/a GRAPELAND FUEL &DEBBIE
BBQ,AUTREY
&
Clerk
ANDREW J. PATION
Appellant
VS.
VELVIN OIL COMPANY, INC.
Appellee
ON APPEAL FROM THE FOURTH JUDICIAL DISTRICT COURT OF
RUSK COUNTY, 'I.EXAS, TRIAL COURT NO. 2014-362
BRIEF OF APPELLEE
LAW OFFICE OF RONNIE HORSLEY, P.C.
Attorney for Appellee, Velvin Oil Company, Inc.
RONNIE HORSLEY
P.O. Box 7017
Tyler, TX 75711
Telephone: (903) 593-7314
Facsimile: (903) 593-3450
Email: horsleylaw@tyler.net
State Bar No. 10014000
ORAL ARGUMENT WAIVED
IDENTITY OF PARTIES AND COUNSEL
Appellants/Defendants:
A.J.P. Oil Company, LLC, d/b/a Grapeland Fuel & BBQ; Andrew J. Patton
Counsel for Appellants/Defendants:
Jaclyn D. Patton
639 Heights Blvd.
Houston, TX 77007
Phone: (713)730-9946
Fax: (713) 583-4180
Email: jaclyn@bcestateplanning.com
State Bar No. 24085521
William R. Pemberton
P.O. Box 1112
Crockett, TX 75835
Phone: (936) 544-4111
Fax: (936) 544-5023
Email: bill@permbertontriallaw.net
State Bar No. 15735500
Appellee/Plaintiff:
Velvin Oil Company, Inc.
Counsel for Appellee/Plaintiff
Ronnie Horsley
P.O. Box 7017
Tyler, TX 75711
Phone: (903) 593-7314
Fax: (903) 593-3450
Email: horsleylaw@tyler.net
State Bar No. 10014000
TABLE OF CONTENTS
PAGE
I. STATEMENT OF THE CASE ..................................................... 1
II. APPELLEE'S RESPONSE TO APPELLANTS' ISSUES ................. 1
III. APPELEE CANNOT AGREE WITH THE STATEMENT OF
FACTS AS PRESENTED BY APPELLANT .................................. 3
IV. APPELLEE'S STATEMENT OF FACTS ....................................... 3
V. SUMMARY OF ARGUMENT ..................................................... 4
VL ARGUMENT ............................................................................. 6
REPLY TO APPELLANTS' POINT NUMBER 1
The court did not err in granting the Motion for Summary
Judgment as the denial by Appellant was not sufficient to
overcome the prima facie evidentiary effect of Plaintiff's
Petition 6
REPLY TO APPELLANTS' POINT NUMBER 2
The appellant failed to plead the existence of the prior suit,
failed to request an abatement of the pending suit and
provided no evidence that the suits were identical in nature
and character. The courts have consistently held that such
a plea can be waived if not presented .... .9
REPLY TO APPELLANTS' POINT NUMBER 1D
The court did not err in granting the appellee's attorneys
fees as the summary judgment evidence of same was
sufficient, and the credit agreement between the
parties stipulated a reasonable attorney's fee as being
one-third of the outstanding balance.
VII. CONCLUSION
CERTIFICATE OF COMPLIANCE .................................................................... 19
CERTIFICATE OF SERVICE ................................................................................ 19
TABLE OF AUTHORITIES
STATE CASES
PAGE
Hartis v. Century Furniture Industries, Inc.,
230 S.W.3rd 723, (Tex.App. —Houston [14th Dist.], no pet.) .................... 5
Fisher v. Yates, 953 S.W.2d 370
(Tex. APP—Texarkana, 1997 writ denied 988 S.W. 2d 730 per curium.)... 7
General Electric Supply Company, a Division of General Elec. Co.
v. Gulf Electroquip, Inc. 857 S.W. 2d 591
(Tex. App. —Houston[ 1st Dist], 1993 writ denied) ....................................... 7
Boeker v. Syptak, 916 S.W. 2d 59
(Tex. App —Houston[1st Dist.] 1996, no writ .................................................. 8
Composites, Inc. v. Westlake Styrene Corp.,
15 S.W.3rd 124 (Tex. App. —Houston[1st Dist.] pet. Dismissed ................. 8
Oliver v. Carter & Co. Irr., Inc.,
08-01-00446CV, 2002 WL 1301568 at p.5 ........................................................ 8, 9
Norcross v. Conoco, Inc.,
720 S.W.2d 627, 630 (Tex.App.-San Antonio 1986, no writ) ...................... 8
Taylor v. Fred Clark Felt Company,
567 S.W.2d 863 (Tex.Civ.App.-Houston
[14th Dist.] 1979, writ ref'd n.r e) 8
Day v. State 489 S.W.2d 368 (Tex. 1972) ........................................................ 10, 12
Attorney General of Texas v. Duncan,
929 S.W.2d 567 (Tex.App. - Fort Worth 1996, no writ) 11
iv
Hidalgo v. Surety Savings and Loan Association,
462 S.W.2d 540, (Tex. 1971) ............................................................................. 11
Beckman v. Beckman, 716 S.W.2d 83, 85-86
(Tex. App. 1986), dismissed (Oct. 22, 1986) (p. 85-86) ............................. 11
Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974) ........................................... 11
Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1072 (1926) ......................... 11
Texas Employers Insurance Association v. Baeza,
584 S.W.2d 317, 321 (Tex.Ciy.App. Amarillo 1979, no writ) ................. 11-12
Arthur Andersen v. Perry Equipment Corp.,
945 S.W.2d 812 (Tex. 1997) ................................................................. 13, 14,16
Estate of Tyner, 292 S.W.3rd 179 (Tex. App. —Tyler, 2009, no pet).. . 13, 14, 16
Academy Corp. v. Interior Buildout & Turnkey Const. Inc.,
21 S.W. 3rd 732 (Tex. App-Houston [14th Dist.] no pet. 2000) ..................... 13
AU Pharmaceutical, Inc. v. Boston,
986 S.W.2d 331, 338 (Tex.App.-Texarkana 1999, no pet.) ............................. 14
Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373 (Tex.App.-San
Antonio 1999, pet. denied) .................................................................................... 15
RULES AND STATUTES
TEXAS GOVERNMENT CODE ANNOTATED § 312.011(1)
(Vernon 1998) .......................................................................................................... 8
TEXAS RULES OF CIVIL PROCEDURE, RULE 185 ................................. 3, 6, 7
TEXAS RULES OF CIVIL PROCEDURE, RULE 166a .............................. .7,14
TEXAS RULES OF CIVIL PROCEDURE, RULE 93(3) .............................. 9,10
TEXAS RULES OF CIVIL PROCEDURE, RULE 93(10) .......................... 7
TEXAS RULES OF CIVIL PROCEDURE, RULE 95 .................................. 7
RULE 185 TEXAS RULES OF CIVIL PROCEDURE .............................. ... 3, 6
TEXAS DISCIPLINARY RULES OF PROFESSIONAL
CONDUCT, RULE 1.04 ......................................................................... .13,14, 15, 16
vi
I. STATEMENT OF THE CASE
Appellee, Velvin Oil Company, Inc. ("Velvin") agrees with the
statement of the case submitted by Appellants (collectively referred to as
AJP).
II. APPELLEE'S RESPONSE TO APPELLANT'S ISSUES
ISSUE 1: TRIAL COURT DID NOT ERR IN GRANTING THE MOTION
FOR SUMMARY JUDGMENT:
A. Appellee's response to Appellants' ISSUE 1A, wherein
Appellant alleges plaintiff's sworn account cannot be
considered prima facie evidence to support summary judgment
where an amended answer and a controverting affidavit was
timely filed, is that the amended answer and its
controverting affidavit actuallyconstitute a conditional
denial.
B. Appellee's reply to Appellants' ISSUE 1B regarding Appellants'
defense of payment on deliveries made after the claim of
disputed diesel, is that the appellant predicates this issue on
1
facts which were not presented as Summary Judgment
evidence and were not considered by the trial court.
C. Appellee's response to Appellants' ISSUE 1C regarding
application of payments again is that appellant has attempted
to make an issue of matters not in the record as evidence as
there was no Summary Judgment evidence of such.
D. Appellee's response to Appellants' ISSUE 1D, regarding
reasonableness of attorney's fees, is that judicial notice was not
taken of the attorney's fees, rather, the award of attorney's
fees was based on the affidavit of appellee's counsel which was
not controverted by appellant, and the parties' credit agreement
stipulated 1/3 to be a reasonable fee.
ISSUE 2: TRIAL COURT DID NOT ERR IN DENYING THE MOTION FOR
NEW TRIAL BECAUSE OF A PRIOR PENDING CASE.
No Plea in Abatement was ever filed by the Appellant and the
evidence did not establish facts which would entitle appellant to an
abatement.
2
III. APPELLEE CANNOT AGREE WITH THE STATEMENT OF FACTS
AS PRESENTED BY APPELLANT
We are compelled to object to certain aspect of statement of facts and
matters utilized by appellant including matters which were not placed into
evidence and apparently were based on the personal experiences she had
in Houston County in connection with another case and were not included
in the trial court matter. Those include statements of fact which allege
Velvin delivered tainted fuel; extensive correspondence between the
parties, thousands of pages of discovery, etc. Appellant did not file an
Answer or Motion to Transfer venue pointing out that the "second filed
suit" was identical to the subject matter of the other suit.
IV. APPELLEE'S STATEMENT OF FACTS
Velvin filed its Plaintiff's Original Petition in the Fourth Judicial
District Court of Rusk County on the 19th day of November, 2014. (CR5-
CR15). The Petition was filed pursuant to Rule 185, Tex. R. Civ. Pro. AJP
then filed its unverified Defendants' Original Answer on the 29th day of
December, 2014. (Supp. CR5- CR9). AJP filed its Defendant's Motion to
Transfer Venue on the 29th day of December, 2014. (CR16-CR45). Velvin
filed its Response to Defendant's Motion to Transfer Venue on the 23rd day
3
of February, 2015. (2nd Supp. CR5-CR115). The Motion to Transfer Venue
was denied after hearing on the 3rd day of March, 2015. (CR54). Velvin
filed its Motion for Summary Judgment on the 30th day of March, 2015.
(CR55-CR58). AJP filed an Amended Answer on the 6th day of April, 2015.
(CR59-CR62) and also filed its Response to Motion for Summary Judgment
on the 6th day of April, 2015 (CR63-CR75). Trial court granted Velvin's
Motion for Summary Judgment on the 4th day of June, 2015. (CR76-CR77).
AJP filed its Motion for New Trial on the 2nd day of July, 2015. (CR78-
CR136) and the Trial court denied AJP's Motion for New Trial on the 20th
day of August, 2015. (CR146)
V. SUMMARY OF ARGUMENT
Motion for Summary Judgment
Although the court is limited in granting Plaintiff's Motion for
Summary Judgment to the grounds set forth in the Motion, it is always
been understood by Texas courts that the defendant in its response and its
affidavits can establish sufficient grounds as a matter of law to have
judgment rendered against it as in this case.
4
The plea of payment would ordinarily be sufficient to overcome and
defeat the Summary Judgment. However, the "proof" consisting of a check
does not rise to the level of an accounting as required by the rules. The
Plea of "payment" is an affirmative defense as well as a plea in avoidance.
The burden of proving same is on the Defendant AJP. Hartis v. Century
Furniture Industries, Inc., 230 S.W.3rd 723, (Tex.App. —Houston [14th Dist.],
no pet.).
Motion for New Trial
The Motion for New Trial (CR78-CR136) filed by appellant attempted
to interject matters which had not been before the court in the Motion for
New Trial (CR78-CR136) or in the Motion to Transfer Venue. (CR16-CR45).
The appellant attempts to submit an issue regarding the defense of
payment because" appellants instructed appellee that payments made
after delivery of disputed diesel by appellee were not applied to charges
for disputed diesel" (Appellee's ISSUE 1d, p. 3). There was no evidence
supported or submitted to the court regarding this issue.
5
VI. ARGUMENT
REPLY TO APPELLANTS' POINT NUMBER 1
The court did not err in granting the Motion for Summary
Judgment as the denial by Appellant was not sufficient to overcome the
prima facie evidentiary effect of Plaintiff's Petition.
Plaintiff's Original Petition (CR5-CR15) set forth a sworn account
under RULE 185 I.EXAS RULES OF CIVIL PROCEDURE. The Defendants'
Original Denial (Supp. CR5- CR9) was not sufficient to deny the account.
The Amended Answer filed by Appellant (CR 59-CR62) does not deny the
sworn account, rather, same simply interposes a suggestion of payment
and a denial that the finance charges were due and owing. The verification
accompanying this Amended Answer (CR 59- CR 62) does not contain
facts, rather, it simply contains a statement:
every statement contained in paragraph one and two of
//
defendant's first amended original answer is true and correct."
Summary Judgment evidence must be based on personal knowledge,
set forth facts which would be admissible in evidence and show the affiants
6
competency. Affidavits which merely adopt the factual allegations made in
a response are not proper summary judgment evidence. Fisher v. Yates, 953
S.W.2d 370 (Tex. APP—Texarkana, 1997 writ denied 988 S.W. 2d 730 per
curium.) Similarly, in General Electric Supply Company, a Division of General
Elec. Co. v. Gulf Electroquip, Inc. 857 S.W. 2d 591 (Tex. App. —Houston{ 1st
Dist], 1993 writ denied)
The Response to the Motion for Summary Judgment (CR63-CR75)
again pleads payment and incorporates the affidavit of Andrew Patton.
The affidavit also attaches as Exhibit 2 the credit terms and the personal
guarantee of Mr. Patton. (CR 71) This instrument also includes the
provision:
"If Velvin Oil Co. finds it necessary to refer this
account to an attorney for initiation of a lawsuit a fee
of 33 1/3% of the outstanding balance plus any and
all court costs shall be added to the account balance"
(CR 71).
The pleading filed does not entitle Appellant to present a defense to
the account presented under RULES 185, 166a 93 (10) and 95, TEXAS
7
RULES OF CIVIL PROCEDURE. The Apellant's pleadings and the
"affidavit" attached, do not constitute summary judgment evidence. Boeker
v. Syptak, 916 S.W.2d 59 (Tex. App—Houston[1st Dist.] 1996, no writ.
At best the appellant by its pleading set out an affirmative defense on
which it had the burden of establishing evidence at the summary judgment
hearing. Composites, inc. v. Westlake Styrene Corp., 15 S.W.3rd 124 (Tex.
App. —Houston[1st Dist.] pet. dismissed
Oliver v. Carter & Co. Irr., Inc., 08-01-00446CV, 2002 WL 1301568 at
p.5, discusses the need for the qualifying response by citing the statutory
definition of "affidavit": "a statement in writing of a fact or facts signed by
the party making it, sworn to before an officer authorized to administer
oaths,..."Tex.Gov't Code Ann. § 312.011(1)(Vernon 1998). No particular
terminology is required by Section 312.011 to render a document an
affidavit. Norcross v. Conoco, Inc., 720 S.W.2d 627, 630 (Tex.App.-San
Antonio 1986, no writ). It is the substance and not the form of an affidavit
that is important. Id., citing Taylor v. Fred Clark Felt Company, 567 S.W.2d 863
(Tex.Civ.App.-Houston [14th Dist.] 1978, writ ref'd n.r.e .). However, the
form of a statement is important for purposes of determining whether such
8
statement qualifies as an affidavit that must accompany a written denial
under Rules 185 and 93(10)." Oliver v. Carter & Co. Irr., Inc., 08-01-00446CV,
2002 WL 1301568 at p.5.
It is submitted that the response of Appellant does not under the
authorities cited.
REPLY TO APPELLANTS' POINT NUMBER 2
The appellant failed to plead the existence of the prior suit, failed
to request an abatement of the pending suit and provided no evidence
that the suits were identical in nature and character. The courts have
consistently held that such a plea can be waived if not presented.
The appellant complains in issue number two that there was a prior
suit pending between the same parties. RULE 93(3) TEXAS RULES OF
CIVIL PROCEDURE requires a pleading setting up any of the following
matters be verified by affidavit "that there is another suit pending in this
state between the same parties involving the same claim." No pleading to
this effect were filed by appellant. The "Petition" (CR23-CR45 ) attached to
the affidavit accompanying the Motion to Transfer Venue (CR16-CR45)
does not set forth facts which could give rise to the matter "appearing" of
9
record. The instrument was part of the Venue allegation that the forum was
not convenient, and was not offered as Summary Judgment evidence.
A Plea in Abatement pursuant to RULE 93 (3) TEXAS RULES OF
CIVIL PROCEDURE, must be specifically pleaded if one is claiming a prior
suit pending between the same parties. Day v. State, 489 S.W.2d 368 (Tex.
1972). This plea must also be verified. An examination of the
documentation in the file including the Original Answer (Supp. CR5- CR9),
the Motion to Transfer Venue, (CR16-CR45), the Amended Answer (CR59-
CR62) do not show any compliance or any effort by Appellant, and in fact,
the only evidence produced by Appellant which could possibly
substantiate such a plea is contained within the affidavit of Andrew Patton
which accompanied the Motion to Transfer Venue (CR16-CR45 at p. 21-22)
A file-marked copy of a Houston County Petition (not certified) as an
exhibit to the Motion to Transfer Venue (CR16-CR45, p. 23-45) simply
points out a dispute arising out of a delivery of allegedly defective diesel
fuel. The Houston County Petition nor any of its attachments were offered
as evidence in response to the Motion for Summary Judgment (CR55-CR58)
or in connection with a Plea in Abatement. Attaching them to a pleading
10
does not constitute them as being evidence in this case, nor do the
pleadings themselves constitute evidence. Attorney General of Texas v.
Duncan, 929 S.W.2d 567 (Tex.App. - Fort Worth 1996, no writ). Pleadings,
even if sworn, do not constitute summary judgment evidence. Hidalgo v.
Surety Savings and Loan Association, 462 S.W.2d 540, (Tex. 1971).
AUTHORITIES:
Beckman v. Beckman, 716 S.W2d 83, 85-86 (Tex. App. 1986), dismissed
(Oct. 22, 1986) (p. 85-86)
" With respect to the plea in abatement, the court in which suit is first filed
acquires dominant jurisdiction to the exclusion of other coordinate courts.
Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974). Any subsequent suit
involving the same parties and controversy must be dismissed if a party to
that suit calls the second court's attention to the pendency of the prior
lawsuit by plea in abatement. Id. A plea in abatement grounded on the
pendency of a prior suit must be predicated upon a state of facts that are
seasonably alleged and proved, and, unless this is done, the subsequent
suit is not abated. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1072 (1926);
Texas Employers Insurance Association v. Baeza, 584 S.W.2d 317, 321
11
(Tex.Civ.App. — Amarillo 1979, no writ); Day v. State, 489 S.W.2d 368, 371
(Tex.Civ.App. —Austin 1972, writ ref'd n.r.e.). In the absence of a
seasonable plea in abatement, *86 the plea is waived. Cleveland, 285 S.W.2d
at 1072."
REPLY TO APPELLANTS POINT NUMBER 1D
The court did not err in granting the appellee's attorneys fees as the
summary judgment evidence of same was sufficient, and the credit
agreement between the parties stipulated a reasonable attorney's fee as
being one-third of the outstanding balance.
Appellant placed before the court the parties' credit agreement as
well as the personal guarantee. The agreement provides for the interest as
described by appellant, it also describes that Velvin Oil is entitled to
reasonable attorney's fee of one third of balance in the event of a lawsuit
was filed. The signature of Andrew Patton confirms this agreement.
The Appellants ISSUE 1D complains of the attorneys fees awarded by
the court even though they are supported by the parties own contract and
is supported by the affidavit of Appellee's attorney. The affidavit of
William Pemberton (CR72- CR 75) leaves out the single critical statement
12
required to oppose the Affidavit of Ronnie Horsley (CR57) as to reasonable
attorney's fee, and that it does not contain a statement that the fees
requested are unreasonable. Further RULE 1.04 of the TEXAS
DISCIPLINARY RULES OF PROFESSIONAL CONDUCT does not require
all the elements listed there, nor does the Arthur Anderson case or
subsequent Texas cases require a listing of all eight requirements as a
condition of recovery of a reasonable fee. Arthur Andersen v. Perry
Equipment Corp., 945 S.W.2d 812 (Tex. 1997). particular, since the parties
have a signed agreement setting forth Appellee's entitlement to the
attorney's fees of 33 1/3% of the balance, and the Appellant agreed to such
terms in writing, there can be little dispute. The case of the Estate of Tyner
discusses the affidavit and the in applicability of the "checklist". Estate of
Tyner, 292 S.W. 3rd 179 (Tex. App. —Tyler, 2009, no pet).
AUTHORITIES:
Academy Corp. v. Interior Buildout & Turnkey Const. Inc., 21 S.W. 3 rd 732 (Tex.
App-Houston [14th Dist.] no pet. 2000).
"Academy claims Turnkey did not present evidence of the second, fifth,
and sixth factors; therefore, the evidence is legally insufficient to support
13
an award of attorney's fees. There is nothing in Perry Equip. Corp. to suggest
that the eight factors are elements of proof, rather than guidelines which
the factfinder "should consider when determining the reasonableness of a
fee." See id. see also Tex. Disciplinary R. Prof'l Conduct 1.04, reprinted in
TEX. GOVT CODE ANNN., tit. 2, subtit. G app. A (Vernon 1998) (Tex.
State Bar R. art. X, § 9) (listing "factors that may be considered in
determining the reasonableness of a fee include, but not to the exclusion of
other relevant factors")." (p742)
Estate of Tyner, 292 S.W. 3RD 179 (Tex. App. —Tyler, 2009, no pet)
"To create a fact issue, the nonmovant's attorney must file an affidavit
contesting the reasonableness of the movant's attorney's fee affidavit. Id. To
constitute proper summary judgment evidence, an affidavit must be made
on personal knowledge, set forth facts which would be admissible in
evidence, and show the affiant's competence. Tex.R. Civ. P. 166a(f). The
allegations must be direct, unequivocal, and such that perjury is assignable.
All Pharmaceutical, Inc. v. Boston, 986 S.W.2d 331, 338 (Tex.App.-Texarkana
1999, no pet.). Thus, an affidavit filed by the movant's attorney that sets
forth his qualifications, his opinion regarding reasonable attorney's fees,
14
and the basis for his opinion will be sufficient to support summary
judgment, if uncontroverted. Basin Credit Consultants, Inc. V. Obregon, 2
S.W.3d 372, 373 (Tex.App.-San Antonio 1999, pet. denied). (p. 184)"
While appellee may concede the legal proposition that the court may
not take judicial notice of a reasonable fee if controverted, it is appellee's
position that the affidavit of William Pemberton (CR 72-75) does not
actually controvert the fee affidavit (CR57) accompanying the Motion for
Summary judgment, rather, the instrument seems to simply be expressing
an objection to the absence of elements, and does not state that the fee
being requested is 'unreasonable".
The affidavit of William Pemberton (CR 72-75) leaves out one
important issue it does not state that in the opinion of William Pemberton,
attorney, the attorneys fees set forth in the affidavit of Ronnie Horsley are
unreasonable. (CR57). "The summary judgment affidavit of Ronnie
Horsley in support of plaintiffs claim for attorney's fees does not set forth a
reasonable amount of attorney's fees, because it does not contain all the
elements required by RULE 1.04 of the TEXAS DISCIPLINARY RULES OF
15
PROFESSIONAL CONDUCT". Arthur Andersen v. Perry Equipment Corp.,
945 S.W.2d 812 (Tex. 1997).
The court and Arthur Anderson and RULE 1.04 of the TEXAS
DISCIPLINARY RULES OF PROFESSIONAL CONDUCT does not require
submission of or consideration of all of the enumerated elements. The
elements are simply suggested guidelines by which the court may
determine a reasonable fee. ). Estate of Tyner, 292 S.W. 3RD 179 (Tex. App. —
Tyler, 2009, no pet) discusses the sufficiency of attorney's fee affidavits and
the inapplicability of the "checklist".
The affidavit of Ronnie Horsley (CR57) which accompanied the
Motion for Summary Judgment set forth that the affiant was an attorney,
duly sworn, licensed and familiar with the fees customarily charged by
attorneys in the area. The affiant had practiced law since 1970 in the state of
Texas and was retained by plaintiff on a contingency based on the amount
of the debt to be collected. The affiant set out that his experience extended
to handling numerous cases and based on the usual contingency
arrangements of other attorneys $10,892.24 was a reasonable customary fee
for investigating the case attempting to secure collection by amicable
16
means preparing and filing the petition filing a motion for summary
judgment therein.
Although the court did not take judicial notice of the fee, it could
have since the affidavit of William Pemberton (CR 72-75) did not voice an
opinion that the fees sought were unreasonable based on the attorneys
experience, rather, it was based on the fact that the affidavit of Ronnie
Horsley (CR57) did not set forth all of the eight elements
Because the Pemberton affidavit did not set forth facts, rather it set
forth an exception or objection, the trial court was not obliged to consider
saying as raising an issue.
VII. CONCLUSION
In conclusion, appellee would show that the Summary Judgment
evidence before the court established Plaintiff's entitlement to recover. The
Appellant did not offer any further affidavits and those which were a part
of the Motion to Transfer Venue were not offered in evidence in response
to Appellee's Motion for Summary Judgment nor were they placed in
evidence in connection with the Motion for New Trial. The Appellant
failed to deny the sworn account adequately and its plea of payment was
17
insufficient. The court properly granted the Motion for Summary
Judgment based on the evidence and the attorneys fees awarded were
allowed by law and in accordance with the parties' credit agreement.
The judgment of the trial court should be in all things affirmed.
Respectfully submitted,
LAW OFFICES OF RONNIE HORSLEY, P.C.
Attorney for Plaintiff
BY: /s/ Ronnie Horsley
RONNIE HORSLEY
P.O. Box 7017
Tyler, Texas 75711
Telephone: (903) 593-7314
Facsimile: (903) 593-3450
Email: horsleylaw@tyler.net
Texas Bar Card No. 10014000
18
CERTIFICATE OF COMPLIANCE
I do hereby certify that this document was produced on a computer
using Microsoft Word and contains 3,237 words, as determined by the
computer software's word-count function, excluding the sections of the
document listed in TEXAS RULES OF APPELLATE PROCEDURE 9.4(i)(1)
/s/ Ronnie Horsley
RONNIE HORSLEY
CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of December, 2015, a true and
correct copy of the foregoing was mailed by certified mail, return receipt
requested, and electronic service to the following:
Jaclyn D. Patton email: jaclyn@txestateplarming.com
Attorney at Law
639 Heights Boulevard
Houston, TX 77007
/s/ Ronnie Horsley
RONNIE HORSLEY
19