The opinion
NYE, Chief Justice,
dissenting.
I respectfully dissent. The majority and I agree that an award of attorney fees to appellee is mandatory. The majority would reverse that part of the judgment that denies attorney fees and remand for another trial on that issue with ultimately a possible second appeal.
The amount of appellee’s reasonable and necessary attorney’s fees was proved and was not challenged at trial. The amount is undisputed here on appeal: $6,014.21. “[Wjhere the testimony of a witness, even an interested one, is clear, direct, positive, and uncontradicted by any other witness or attendant circumstances, it is taken as true as a matter of law.” Sandoval v. Hartford Casualty Insurance Co., 653 S.W.2d 604, 607 (Tex.App. — Amarillo 1983, no writ). Where, as here, the reasonableness, the amount and necessity of attorney’s fees are established without dispute, it is our duty to reform the judgment to reflect such amount. See Industrial Disposal Supply Co. v. Perryman Brothers Trash Service, Inc., 664 S.W.2d 756, 761 (Tex. App. — San Antonio 1983, writ ref’d n.r.e.).
Old Rule 434 T.R.C.P. and now rule 80(a) Tex.R.App.P. authorizes as well as requires us to reform the judgment and ... “render the judgment or decree that the court below should have rendered ...” As such, I would reform the judgment to add $6,014.21 as attorney fees to appellee Leonard S. Kaplan’s judgment and as reformed, would affirm the judgment of the trial court.