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Click here for the full text of this decision FACTS:George Hachar Sr. (“George”) appeals the trial court’s orders awarding attorneys fees in an action relating to the trusts created under Nicholas D. Hachar’s Last Will and Testament. George contends that the trial court erred in awarding attorney’s fees to Isaura Hachar, Guadalupe Hachar Didieu, Maria Guadalupe Rebeca Hachar de la Fuente, and Olga Hachar Lavaude (collectively referred to herein as the “beneficiaries”). George also contends that the trial court erred in refusing to award him conditional appellate fees. The beneficiaries filed a cross-appeal asserting a conditional issue if this court determines that the award of attorneys fees is governed by a prevailing-party standard and a second issue relating to the percentage used to calculate post-judgment interest. HOLDING:Affirmed. George contends that the trial court’s award of attorney’s fees to the beneficiaries was not equitable and just. George asserts that the trial court was required to take into consideration the “success” of the parties in exercising its discretion. Although a trial court may consider a party’s success, Texas Trust Code 114.064 is not a prevailing-party statute; therefore, an award of attorney’s fees under 114.064 is not dependent on a finding that a party “substantially prevailed.” In this case, the trial court was very involved in the parties’ negotiations in reaching a settlement and during the discovery process that lasted almost one year. The trial court has more knowledge than this court with regard to the issues that concerned both parties. From their response to George’s application, it appears that the beneficiaries believed they were successful in removing the development and management of the trust’s land from George’s control. Given the history of the litigation and its ultimate resolution by settlement, the trial court did not err in determining that an award of attorney’s fees to the beneficiaries was equitable and just, the court concludes. George also contends that the evidence is legally insufficient to support a finding that the attorneys fees incurred by the beneficiaries were reasonable and necessary. George asserts that the affidavit submitted by the beneficiaries’ attorney was conclusory and amounts to no evidence. The affidavit of the beneficiaries’ attorney listed the factors he considered in determining that the fees itemized in the billing statements were reasonable and necessary. Those factors include the factors listed in Texas Rule of Disciplinary Procedure 1.04. Generally, a trial court does not abuse its discretion when an attorney testifies that the fees incurred were reasonable and necessary and summarizes the hours worked and rate charged. The fact that the attorney in this case testified to the reasonableness and necessity of the fees in an affidavit does not preclude the trial court from relying on that testimony. Accordingly, the affidavit and itemized billing statements are legally sufficient evidence to support the award of the attorney’s fees to the beneficiaries. George further contends that the attorneys fees were erroneously awarded because the beneficiaries failed to segregate the fees relating to the replacement of the corporate trustee from the fees relating to the cross-claim. Although the beneficiaries did have a duty to segregate the fees relating to the corporate trustee action, the affidavit in support of their application states approximately $10,000 in fees were incurred in regard to the corporate trustee action. This is sufficient segregation, the court concludes. George complains that the $10,000 estimation is contrary to the billing records. George asserts that the records show time and travel expenses in excess of $10,000 were incurred while the corporate trustee litigation was pending. George’s complaint, however, ignores that the beneficiaries initially filed their cross-claim in the pending corporate trustee litigation. Although the actual pleading was not filed until June of 2001, the itemized fee statements reveal several early entries regarding the discussion of strategies which the trial court may have believed included discussions regarding the counter-claim. In addition, an entry regarding proposed pleadings appears as early as December of 2000 which was after the date the original answer was filed. Accordingly, the trial court was not required to conclude that all entries made while the corporate trustee litigation was pending related exclusively to the corporate trustee issue. The court holds that the awarding of appellate attorneys fees is not mandatory, and the trial court did not abuse its discretion in not awarding conditional appellate attorneys fees. Because the beneficiaries did not apprise the trial court of their objection to the post-judgment percentage rate, error has not been preserved. OPINION:Lopez, C.J.; Lopez, C.J., Stone and Duncan, JJ.

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