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Cossio v. Delgado

Court of Appeals of Texas, First District

June 28, 2018

JUAN C. COSSIO, Appellant
v.
JOSE LUIS DELGADO, Appellee

          On Appeal from the 10th District Court Galveston County, Texas Trial Court Case No. 16CV0035

          Panel consists of Justices Higley, Brown, and Caughey.

          MEMORANDUM OPINION

          Laura Carter Higley Justice.

         Jose Luis Delgado sued Juan C. Cossio for failing to provide clear title to a piece of real property he purchased from Cossio. The parties mediated the dispute and entered into a mediated settlement agreement ("MSA"). Cossio failed to honor the MSA, and Delgado amended his petition, seeking to enforce it. The trial court granted summary judgment in favor of Delgado, ordering Cossio to comply with the terms of the MSA and awarding Delgado his attorney's fees.

         In one appellate issue, Cossio challenges the trial court's award of attorney's fees to Delgado. Because Delgado's summary-judgment evidence does not establish conclusively the amount of his reasonable and necessary attorneys' fees, we reverse the trial court's judgment with respect to the award of attorney's fees and remand. The remaining portions of the judgment, which have not been challenged on appeal, are affirmed.

         Background

         In 2006, Delgado and Cossio entered into a "Lease with Option to Buy" related to a parcel of real property owned by Cossio and located in Galveston, Texas. Delgado agreed to make a down payment of $26, 000 and then make monthly payments to Cossio for five years, totaling $24, 000. The contract provided that, once all payments were made, Cossio would provide Delgado with a warranty deed to the property.

         Delgado made the down payment. He would later acknowledge that he knew, in 2006, that the property had a lien on it and that Cossio did not have clear title. However, Cossio had assured Delgado that the lien would be paid off and that he would provide Delgado with clear title.

         After five years, Delgado claimed that he had made all of the required monthly payments to Cossio. He demanded that Cossio provide him with clear title to the property. When title was not provided, Delgado filed declaratory-judgment action to quiet title. Alternatively, Delgado sought specific performance, requiring Cossio to execute a warranty deed. Delgado also requested his attorney's fees. Cossio answered and filed a counterclaim.

         The parties mediated the dispute. As a result, the parties signed an MSA in which Delgado agreed to pay for a survey and to have the property replatted. He also agreed to pay Cossio an additional sum for the property. In exchange, Cossio agreed to execute a general warranty deed for the property.

         Six months after mediation, Delgado amended his petition. He alleged that he had fully complied with the MSA, but Cossio had "refused to execute the paperwork necessary for the re-plat and has attempted to 're-negotiate' the MSA."

         Delgado filed a traditional motion for summary judgment. He asserted that (1) the MSA was binding on the parties; (2) he had performed under the MSA; (3) Cossio had failed to perform; and (4) he was entitled to the remedy of specific performance. Delgado requested that Cossio "be compelled to execute the required conveyance and re-plat documents and pay all of Delgado's attorney's fees to date."

         To support his attorney's fees request, Delgado offered the affidavit of his attorney, who testified, in relevant part, as follows:

2. I was retained by Jose Luis Delgado regarding his purchase of the property at 1308 43rd Street, Galveston, Texas.
3. I was admitted to practice law in Texas in 1978 and have conducted a general practice for more than 35 years.
4. As of the date hereof, I have devoted 59.7 hours to this matter. My hourly rate is $300.
5. Based on my experience and after consideration of the factors listed below, my ...

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