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Perez v. Burnett6/22/2000
By one issue, appellant Joseph A. Perez challenges the trial court's order that he receive attorney's fees in the amount of $1,000, only, from appellees, James L. Burnett and Anna Burnett. Perez contends that the trial court abused its discretion in failing to award attorney's fees for work performed by the first three attorneys he had engaged to collect on a debt. Based upon the rationale expressed herein, we affirm.
In 1994, Perez obtained a judgment against Anna Burnett and Christine Whisenant in the amount of $8,050, together with $3,285.76 in prejudgment interest, $1,750 in attorney's fees, and postjudgment interest at the rate of ten percent per annum. In June 1994, the Burnetts filed a lawsuit in Yoakum County seeking to recover for injuries sustained in an automobile accident. Then on May 12, 1995, Perez filed a plea in intervention in the Burnetts' personal injury action seeking to recover the amount of his judgment. Also, both James and Anna Burnett assigned their interest in the personal injury lawsuit to Perez "until such time as Joseph A. Perez is paid in full."
The Burnetts obtained a favorable judgment in their personal injury action on November 26, 1996. Then, on May 9, 1997, Perez executed a partial release of his judgment when he was paid $17,498.76, which covered the original amount of the debt of $8,050, pre- and post- judgment interest of $7,698.76 and attorney's fees of $1,750. The release specifically provided that it was a partial release only and did not purport to release either Anna Burnett or Christine Whisenant from the payment of "additional attorney's fees, postjudgment interest or additional costs . . . ." After a hearing and by an order dated July 12, 1999, Perez received an order in his favor for the recovery of attorney's fees, which specifically provided for the payment of attorney's fees to attorney Corbin and attorney Haltom in the amount of $500 each for their efforts in collecting Perez's judgment.
Perez appeals from this order contending the trial court abused its discretion in failing to award Perez attorney's fees for the work performed by three of his previous attorneys and also contends that the amount awarded to attorney Corbin is inadequate. The decision to grant or deny attorney's fees and costs is within the trial court's sound discretion. Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). Also, the amount of any award of attorney's fees rests in the sound discretion of the trial court, and its judgment will not be reversed on appeal absent a showing of a clear abuse of discretion. Rowley v. Lake Area Nat. Bank, 976 S.W.2d 715, 724 (Tex.App.--Houston [1st Dist.] 1998, pet. denied). To determine whether the trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles, or whether its action was arbitrary or capricious. Russell v. City of Bryan, 919 S.W.2d 698, 708 (Tex.App.--Houston [14th Dist.] 1996, writ denied); City of Holliday v. Wood, 914 S.W.2d 175, 178 (Tex.App.--Fort Worth 1995, no writ).
Here, Perez contends that he should have been awarded attorney's fees for attorneys Farrell, Parker and Haugland. However, there is no evidence in the record that show attorneys Farrell and Parker even participated in this case and the only evidence which shows attorney Haugland participated is his own motion to withdraw because of Perez's failure to cooperate. The record does show that various affidavits, purportedly from each of the attorneys showing their fees, were put before the trial court for its consideration. The record does not show, however, that these affidavits were admitted into evidence. Documents not admitted into evi
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