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Click here for the full text of this decision FACTS:Thea Fabio and Richard Merrill represented Allen Ertel in two suits and subsequent appeals (the O’Brien litigation) from May 1992 until the litigation concluded in June 2001. Fabio and Merrill billed Ertel monthly at a rate of $100 per hour for attorney time spent on the O’Brien litigation throughout the nine-year period. At the conclusion of the O’Brien litigation, Fabio and Merrill requested additional fees pursuant to an alleged fee agreement originally entered into with Ertel in 1992 (the 1992 agreement). Ertel did not agree with Fabio and Merrill’s interpretation of the 1992 agreement, and instead remitted a payment of $9,750 that he believed would satisfy any outstanding fees owed. Fabio and Merrill did not consider this payment by Ertel sufficient to satisfy the amount owed to them under their interpretation of the 1992 agreement and demanded an additional fee payment from Ertel. Ertel refused. In August 2002, Fabio and Merrill sued Ertel. Fabio and Merrill moved for a partial summary judgment, and Ertel responded with his own motion for summary judgment. In October 2003, the trial court denied Ertel’s motion for summary judgment and granted, in part, Fabio and Merrill’s motion for partial summary judgment. The trial court ordered, in relevant part, that Ertel compensate Fabio and Merrill: at the rate of $150.00 per hour for 440 hours of the legal services which Fabio and Merrill provided Ertel in the O’Brien litigation; and at the rate of $100 per hour for all hours in excess of 440 hours for the legal services which Fabio and Merrill provided to Ertel in the O’Brien litigation. The trial court reserved several issues for trial, including: the total amount of Fabio and Merrill’s damages; Fabio and Merrill’s entitlement to interest and attorneys’ fees; and all other issues raised by Fabio and Merrill’s pleadings. The trial court held a bench trial and took the case under advisement. A month later, the trial court entered a final judgment ordering that Fabio and Merrill take nothing. In a separate instrument, issued the following month, the trial court entered findings of fact and conclusions of law. Fabio and Merrill subsequently requested that the trial court enter amended or additional findings of fact and conclusions of law, but the trial court declined to do so. On appeal, Fabio and Merrill argued that the trial court erred in 1. failing to abide by the earlier partial summary judgment; 2. disregarding the partial summary judgment without providing notice that it would revisit the issues resolved by it, effectively depriving Fabio and Merrill the opportunity to present evidence at trial about these issues; 3. issuing findings of fact and conclusions of law that were not supported by legally or factually sufficient evidence; and 4. failing to enter findings of fact and conclusions of law proposed by Fabio and Merrill. HOLDING:Reversed and remanded. The court concluded that the trial court modified the partial summary judgment via its final findings of facts and conclusions of law as to the terms of the 1992 agreement between the parties. The court further held that the trial court erred in reconsidering the partial summary judgment resolving the terms of the 1992 agreement without affording notice that it would reconsider the issue, effectively denying Fabio and Merrill the opportunity to present evidence at trial on the issue. OPINION:Bland, J.; Radack, C.J., and Alcala and Bland, J.J.

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