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McCafferty v. McCafferty

Court of Appeals of Texas, Fifth District, Dallas

July 24, 2017

JOHN JEFFREY MCCAFFERTY, Appellant
v.
MARY M. MCCAFFERTY, ALANA MCCAFFERTY, AND AMANDA MCCAFFERTY, Appellees

         On Appeal from the 254th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-08-05932

          Before Justices Lang-Miers, Evans, and Schenck

          MEMORANDUM OPINION

          ELIZABETH LANG-MIERS JUSTICE

         Appellant John Jeffrey McCafferty appeals the trial court's order concerning a post-divorce petition for enforcement of a property division and for breach of contract and for enforcement of an interim order on a petition for enforcement filed by appellees, Mary M. McCafferty, Alana McCafferty, and Amanda McCafferty. In six issues, Jeffrey[1] argues that the trial court erred in admitting evidence regarding attorney's fees and awarding $33, 115 in attorney's fees, in overruling Jeffrey's motion to modify, correct, or reform the judgment or motion for new trial, in imposing a sanction of $10, 000 on Jeffrey, in not awarding a credit of $4, 485 to Jeffrey against the judgment, and in awarding Alana a judgment against Jeffrey for $7, 500 for unpaid support and living expenses. We affirm.

         Background

         Jeffrey and Mary entered into an Agreed Final Decree of Divorce that included provisions concerning the division of their marital estate and obligations to their three children- two of whom are appellees Alana and Amanda. This appeal arises from Mary, Alana, and Amanda's petition for enforcement, for breach of contract, and for enforcement of an interim order alleging that Jeffrey had not complied with court orders concerning the property division and owed several unpaid obligations to their children under the terms of the divorce decree.[2]After a hearing, the trial court entered an order granting them relief and denied Jeffrey's Motion to Modify, Correct, or Reform Judgment or, Alternatively, Motion for New Trial.

         Jeffrey appeals four portions of the Order: (1) judgment in favor of Mary against Jeffrey for $168, 361.28 for Mary's community property interest in the marital residence, (2) judgment against Jeffrey for $33, 115.00 for attorney's fees and costs, (3) judgment against Jeffrey for $10, 000 as sanctions, and (4) judgment against Jeffrey for $7, 500 in favor of Alana for unpaid support and living expenses.

         Standard of Review

         We review most family law issues, including the issues raised in this appeal, for an abuse of discretion. In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373, 382 (Tex. App.-Dallas 2013, no pet.); In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.-Dallas 2009, no pet.). A court abuses its discretion when it acts unreasonably, arbitrarily, or without reference to guiding rules and principles. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A trial court does not abuse its discretion when there is some evidence of a substantive and probative character to support its decision. In re A.E.R., No. 05-15-00019-CV, 2016 WL 4205683, at *1 (Tex. App.- Dallas Aug. 9, 2016, pet. filed) (mem. op.).

         In family law cases, legal and factual sufficiency challenges do not constitute independent grounds for asserting error, but are relevant factors in determining whether the trial court abused its discretion. Id. To determine whether the trial court abused its discretion because the evidence is legally or factually insufficient to support the trial court's decision, we consider whether the trial court (1) had sufficient evidence upon which to exercise its discretion and (2) erred in its application of that discretion. Id.

         A trial court's findings are reviewable for legal and factual sufficiency of the evidence under the same standards that are applied in reviewing evidence supporting a jury's answer. Id. In evaluating a legal sufficiency challenge, we credit evidence that supports the finding if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); In re A.E.R., 2016 WL 4205683, at *1. The test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller, 168 S.W.3d at 827. In a factual sufficiency review, we examine all the evidence in the record and will reverse only if the finding is so against the great weight of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam); In re A.E.R., 2016 WL 4205683, at *1.

         Attorney's Fees

         Jeffrey contends his first three issues "(effectively) deal with the same substantive complaint" and, as a result, "group[s]" them together. In those three issues, he argues that the trial court abused its discretion in admitting time records of Mary, Alana, and Amanda's former attorneys through the testimony of their current attorney, in granting Mary a judgment against him for $33, 115.00 for attorney's fees and costs, and in overruling his motion to modify, correct, or reform the judgment or motion for new trial.

         Standard of Review and Applicable Law

         We review a trial court's rulings admitting or excluding evidence under an abuse of discretion standard. Ten Hagen Excavating, Inc. v. Castro-Lopez, 503 S.W.3d 463, 490 (Tex. App.-Dallas 2016, pet. denied). We will uphold the ruling if there is any legitimate basis in the record to support it. Id. Even if the trial court abused its discretion in admitting evidence, erroneous admission of evidence requires reversal only if the error was harmful, meaning the admission of the evidence probably resulted in an improper judgment. U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012).

         Section 9.014 of the family code provides the trial court "may award reasonable attorney's fees in a proceeding under this subchapter[, ]" which includes proceedings to enforce a decree of divorce. Tex. Fam. Code Ann. § 9.014 (West Supp. 2016); see Tex. Fam. Code Ann. § 9.001 (West Supp. 2016) (Enforcement of Decree); In re S.E.C., No. 05-08-00781-CV, 2009 WL 3353624, at *1 (Tex. App.-Dallas Oct. 20, 2009, no pet.) (mem. op.). The trial court does not abuse its discretion when an award of attorney's fees is supported by the evidence. Tull v. Tull, 159 S.W.3d 758, 760 (Tex. App-Dallas 2005, no pet.). "Texas law is clear that '[t]he issue of reasonableness and necessity of attorney's fees requires expert testimony.'" Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 830 (Tex. App.-Dallas 2014, no pet.) (quoting Twin City Fire Ins. Co. v. Vega-Garcia, 223 S.W.3d 762, 770-71 (Tex. App.- Dallas 2007, pet. denied)). A judgment awarding attorney's fees may be supported solely by the testimony of the attorney. Vazquez v. Vazquez, 292 S.W.3d 80, 86 (Tex. App.-Houston [14th Dist.] 2007, no pet.). "An expert is not required to have personal knowledge of the matters about which he testifies." Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 695, 706 (Tex. App.- Dallas 2008, no pet.); see Tex. R. Evid. 602, 703. An expert may base an opinion on facts or data in the case that the expert has reviewed, been made aware of, or personally observed. Tex. R. Evid. 703. And the facts or data need not be admissible for the opinion to be admitted if experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject. Id.

         A trial court should consider several factors in determining the amount of reasonable attorney's fees to award, including the time, labor, and skill required to properly perform the legal service, the novelty and difficulty of the questions involved, the customary fees charged in the local legal community for similar legal services, the amount involved and the results obtained, the nature and length of the professional relationship with the client, and the experience, reputation, and ability of the lawyer performing the services. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). But a trial court is not required to receive evidence on all of these factors. In re A.B.P., 291 S.W.3d 91, 98 (Tex. App.-Dallas 2009, no pet.). The court can also look at the entire record, the evidence presented on reasonableness, the common knowledge of the participants as lawyers and judges, the amount in controversy, and the relative success of the parties. Id.

         Arguments of the Parties

         Jeffrey argues that the trial court abused its discretion in awarding fees incurred by Mary, Alana, and Amanda's former counsel because the award for those fees is not based on legally admissible evidence.[3] He contends that they incorrectly argued that the expert opinion of their present attorney was a "legally proper" means to introduce their former attorney's time records. Jeffrey argues that Mary, Alana, and Amanda's current attorney, testifying as an expert, could rely upon the time records of the prior counsel in giving her opinion, but "the expert[']s[] hearsay is not evidence of the fact relied upon[.]" He contends that the admissibility of the facts and data that the expert relies upon requires proper authentication, and "[p]roper authentication of" Mary, Alana, and Amanda's "first counsel's fees did not occur in this case." Jeffrey argues that, as a result, the legally admissible evidence does not support an award of attorney's fees and costs of $33, 115.00. He contends that the award of attorney's fees should be reversed and, if there is an award of attorney's fees, the judgment for attorney's fees should be reduced to exclude fees charged by prior counsel. He also argues that any award of attorney's fees to Mary should only include fees that the record shows that she (rather than Alana or Amanda) incurred.

         Mary, Alana, and Amanda argue that the trial court did not abuse its discretion when it granted Mary a judgment against Jeffrey for $33, 115.00 for attorney's fees and costs and did not err when it overruled Jeffrey's motion to modify, correct, or reform the judgment, or motion for new trial. They argue that, even if the trial court erred in admitting the time records of their prior counsel, Jeffrey did not prove that the admission of the time records probably caused the rendition of an improper judgment and, as a result, if there was error, it was harmless. They contend that the expert opinion evidence that Mary, Alana, and Amanda presented at trial concerning the amount, reasonableness, and necessity of the attorney's fees supports the award of attorney's fees.

         Analysis

         We agree with Mary, Alana, and Amanda that error, if any, in admitting the time records of their prior counsel was harmless. Their current attorney, Reagan Vernon, testified that she was "familiar with the fair and reasonable and usual customary fees charged by Dallas attorneys in Dallas county[, ]" that the "attorney's fees incurred by [her] client pertaining to this enforcement have been reasonable and necessary[, ]" that they reflected her "usual and customary fees charged in this . . . matter." She testified that the "[a]ttorney's fees and costs incurred by my client attributable to this petition for enforcement and including [her] estimation for prepping for trial today and attending today's final trial is $31, 545."

         When Vernon offered "a summary of the attorneys' fees that have been incurred in this case" as an exhibit, Jeffrey's attorney objected "to any evidence that is not from Ms. Vernon's law firm on the issue of attorney's fees" on the grounds that the records of the law firms that had previously represented Mary, Alana, and Amanda were hearsay and that Vernon had not been "designated as an expert in anybody else's attorney's fees." Vernon stated, "I'll prove up that I reviewed the records of Bailey and Galyen and Holly Monk's office and that those fees are reasonable and necessary and reflect the usual and customary fees in this matter." She also stated, "I can testify to that and-in addition to my own fees." The court overruled the objection. Vernon then testified that Mary has been "paying and hiring these attorneys" and Vernon had "reviewed that work and the drafting and the petitions and the things that" former counsel "has filed along with the other attorneys" and her "testimony here today is that that's reasonable and necessary and that such work was all on behalf of-of Mary."

         Vernon then testified about her representation of Mary, Alana, and Amanda, including her qualification as an attorney licensed in Texas, the work that she had done on the case, and the attorney's fees incurred. She stated that, in her opinion, "the $31, 545 in fees and costs have been both reasonable and necessary in representing my client in this matter and only exacerbated to the exten[t] that Mr. McCafferty wasn't responsive with motions and noncompliant with several orders."

         Later, when Vernon submitted a separate "summary of [her] attorney's fees testimony as to the segregation" of fees among Mary, Alana, and Amanda, Vernon testified that she had "testified that as an expert, the fees of [the previous law firm] were reasonable[.]" She testified that she relied "on the documents in the file" that she reviewed that concerned "the work attorney's before [her] did, " which includes "the billing statements." Jeffrey's attorney again objected that the "breakdown of time that precedes Ms. Vernon's being employed in this case" is hearsay. The court overruled the objection.

         We agree with Mary, Alana, and Amanda that case authority supports the conclusion that error, if any, in admitting the time records from the prior counsel was harmless. In Dieterich, 270 S.W.3d at 706, the appellant objected to testimony by appellee Dieterich's counsel, Jenkins, "about the fees charged by Dieterich's prior attorney [a]s 'simply a bald conclusion without any factual basis' because Jenkins did not have personal knowledge about the former attorney's experience, ethics, morality, truthfulness, or billing habits." But this Court concluded that Jenkins testified as an expert on attorney's fees and an "expert is not required to have personal knowledge of the matters about which he testifies." Id. (citing Texas rules of evidence 602 and 703). We noted that an "expert on attorney's fees may testify that he reviewed an attorney's file and offer an opinion that the fees charged for that work were reasonable and necessary." Id. We noted that Jenkins opined that the former attorney's fees and their combined fees were reasonable and necessary. Id. We also stated that he testified that he reviewed the former attorney's file, his level of experience, work on the case, and his billing rate and hours expended and that he testified concerning his own representation of Dieterich, including his level of experience, fee arrangement, and work completed. Id. We concluded that this testimony is sufficient to support the jury's award of attorney's fees. Id.

         Similarly, in Star Houston Inc. v. Kundak, 843 S.W.2d 294, 297-98 (Tex. App.- Houston [14th Dist.] 1992, no writ), the appellant argued that a written summary of attorney's fees was improperly admitted into evidence because it was hearsay and because of failure to lay a proper predicate. The court concluded that, assuming without deciding that the summary was inadmissible, the error was harmless because, in addition to offering the summary exhibit, the appellee's attorney testified on the issue of attorney's fees. Id. The court concluded that the "presence of this additional evidence" led the court to conclude that "the admission of the written summary was not calculated to cause and probably did not cause the rendition of an improper judgment." Id. at 297-98; see Williamson v. Tucker, 615 S.W.2d 881, 893 (Tex. App.-Dallas 1981, writ ref'd n.r.e.) (holding any error in admitting summary of business records of plaintiff's attorneys to show number of hours and amount of attorney's fees was harmless because parties had stipulated number of hours and resulting fees were reasonable and plaintiff's attorney testified to the number of hours worked).

         Jeffrey argues-citing Lewis v. Southmore Savings Association, 480 S.W.2d 180, 187 (Tex. 1972)-that, although experts can rely upon hearsay in giving their opinion, "the experts' hearsay is not evidence of the fact relied upon, but only bears on the expert's opinion" and the "trial judge should acknowledge the limited purpose and observe it." See U.S. v. Sims, 514 F.2d 147, 149-50 (9th Cir. 1975) ("[T]he hearsay evidence is to be considered solely as a basis for the expert opinion, and not as substantive evidence."); McGuffin v. Terrell, 732 S.W.2d 425, 428 (Tex. App.-Fort Worth 1987, no writ) ("Opinion testimony does not establish material facts as a matter of law."). He then cites Huff v. Harrell, 941 S.W.2d 230, 240 (Tex. App.-Corpus Christi 1996, writ denied), for the proposition that, although an expert can offer an opinion after reviewing data and facts commonly relied upon by an expert, the admissibility of the actual data and facts requires proper authentication. Jeffrey then argues that proper authentication did not occur here. Yet the legal propositions that Jeffrey states do not affect our conclusion here that, even if the court erred in admitting the records of the prior attorneys, the error was harmless. See also Moore v. Polish Power, Inc., 720 S.W.2d 183, 192 (Tex. App.-Dallas 1986, writ ref'd n.r.e.) (quoting United States v. Williams, 447 F.2d 1285, 1290 (5th Cir. 1971) (en banc)) ("[W]hen the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise.").

         In addition, although Jeffrey argues that the trial court abused its discretion in awarding $33, 115 to Mary instead of "only the fees incurred by Mary[, ]" Vernon testified that Mary was "the one that has been paying and hiring these attorneys" and that "such work was all on behalf of-of Mary."

         We resolve Jeffrey's first three issues against him.

         Sanctions

         In his fourth issue, Jeffrey argues that the trial court abused its discretion when it awarded $10, 000 to Mary as a sanction against Jeffrey. Jeffrey contends that there is no evidence supporting the sanction, the sanction was against the great weight and preponderance of the evidence, and the amount of the sanction violates due process.

         Background

         Mary testified that Jeffrey had not fully complied with three court orders: the divorce decree, an interim order from 2013, or a receivership order from 2015. She testified that she filed the enforcement action after Jeffrey-among other things-"reduced the amount of money that he was paying [her] per month from 4, 000 to 2, 000." She also testified that he stopped complying with the interim order in June 2015 when he stopped paying a required monthly payment of $6, 000 for her interest in the house. She also testified that, as a result of Jeffrey's noncompliance, the trial court appointed a receiver to sell the house and awarded Mary attorney's fees. Mary testified that Jeffrey did not comply with the receivership order, did not cooperate with the receiver, and did not comply with the court order for him to pay her attorney's fees. She also testified that Jeffrey appealed the receivership order and the appeal was not successful. In addition, Mary testified that Jeffrey had not complied with the divorce decree provisions requiring that he pay various expenses for their children while they were in college: fifty percent of their health insurance premiums, [4] fifty percent of their room and board, and $500 per month for living expenses and support.

         On cross examination, Jeffrey testified:

Q. You didn't sign the receiver's listing agreement, ...

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