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Midland Western Building L.L.C. v. First Service Air Conditioning Contractors, Inc.

While the jury could have rationally concluded that a reasonable and necessary fee was less than the amount sought, an award of no fees was improper in the absence of evidence affirmatively showing that no attorney's services were needed or that any services provided were of no value. Texas Supreme Court, No. 08-0504, 11-20-2009

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When Midland Western Building, L.L.C. allegedly failed to pay for air conditioning services performed by First Service Air Conditioning Contractors, Inc., First Service sued Midland Western on a sworn account. First Service sought at least $21,693.56, the principal amount due on the account, plus attorney’s fees.

At trial, attorney Brian Carney testified that $24,000 to $26,000 was a reasonable fee for preparing and trying the case, with an additional $7,000 to $10,000 for an appeal to the court of appeals and $5,000 for an appeal to this Court. Carney had reviewed First Service’s legal bills before testifying, but the bills themselves were not introduced into evidence. Midland Western cross-examined Carney on the Arthur Andersen*fn1 factors, and Carney admitted that some of the bills involved work related to parties that were no longer in the case.

The jury awarded First Service $14,645.10 in damages but no attorney’s fees, and the trial court signed a judgment in conformance with the verdict. First Service appealed, arguing that the trial court erred in failing to award mandatory attorney’s fees because there was no evidence to support the jury’s answer of zero attorney’s fees, and First Service conclusively established its reasonable and necessary fees. The court of appeals, citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880 (Tex. 1990), noted that the only evidence regarding attorney’s fees came from Carney, and “[w]hen the evidence is not contradicted by another witness, or contradicted by circumstances, and it is clear, direct, positive, and free from contradiction, inaccuracies, or circumstances that cast suspicion on the evidence, it is taken as true as a matter of law.” ___ S.W.3d ___, ___. Concluding that Carney’s testimony satisfied those requirements, the court of appeals reversed the trial court’s judgment on attorney’s fees and rendered judgment for $24,000 in fees.

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