# Sundance Minerals, L.P. v. Moore

> Court of Appeals of Texas · October 20, 2011 · 354 S.W.3d 507

URL: https://www.frixlaw.com/law-library/cases/5109228

## Case

- **Full name:** SUNDANCE MINERALS, L.P. v. Wanda Jo MOORE, Individually and as Trustee of the Ruth Holder Testamentary Trust Maxine Holder, Individually and as Trustee of the Herbert Holder and Maxine Holder Trust Robert E. Holder Ricky Joe Holder Terry S. Holder Philip B. Holder Janilee Holder Wisdom Scotty D. Plaster Rex. L. Plaster and Larry F. Plaster
- **Court:** Court of Appeals of Texas
- **Decided:** October 20, 2011
- **Citations:** 354 S.W.3d 507; 176 Oil & Gas Rep. 619; 2011 Tex. App. LEXIS 8406; 2011 WL 5009822
- **Precedential status:** Published
- **Opinion:** Concurring in part by Gabriel
- **Judges:** Gabriel, Livingston, Walker
- **Cited by:** 43 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5109228

## How later opinions describe it (automated extraction)

- concluding deed that stated that grantors were entitled to “one half of the usual one eighth royalty received for such [sic] oil, gas and other minerals produced from said land” reserved a 1/2 floating royalty interest
- holding that the grantors reservation of a one-half mineral estate were entitled to a floating one-half royalty in spite of qualifying language suggesting they limited the royalty to a fixed one- sixteenth
- holding a deed reserving a one-half mineral interest, but describing the reserved royalty as “one half of the usual one-eighth,” did not limit the grant- or’s proportional, floating royalty interest

## Opinion text

LEE GABRIEL, Justice,
concurring and dissenting.
I agree with the majority’s opinion that the deed at issue reserved a “fraction of royalty” and that the trial court did not err in its ruling on the competing motions for summary judgment. I disagree, however, that there was legally sufficient evidence to uphold the award of attorney’s fees.
The appellees’ attorney’s affidavit — the only evidence offered to support the award — states, in whole,
I am the attorney of record for the Defendants in the above entitled and numbered cause. I am over eighteen (18) years of age, of sound mind, and fully competent and capable of making this Affidavit. I am a licensed attorney, licensed to practice in the State of Texas, having been licensed to practice since September, 1964. I am personally familiar with suits in this county similar to the above entitled and numbered cause and am personally familiar with the current normal and reasonable fees charged in such cases. An attorney’s fee of $12,000.00 is a reasonable attorney’s fee to be charged in this case and has been necessarily incurred by the Defendants in the prosecution of this action. I am additionally familiar with similar types of cases in this county that are appealed and the current normal and reasonable attorney’s fees incurred in such cases. In the event of an appeal of this case, $7,500 is a reasonable and necessary attorney’s fee to be incurred by the Defendants in the event of each appeal or attempt of an appeal taken by the Plaintiff. This affidavit is made in furtherance of Defendants [sic] Motion for Summary Judgment.
An uncontroverted affidavit is generally sufficient to support an award of attorney’s fees when it “sets forth his qualifications, his opinion regarding reasonable attorney’s fees, and the basis for his opinion.” Cammack the Cook, L.L.C. v. Eastburn, 296 S.W.3d 884, 894 (Tex.App.-Texarkana 2009, pet. denied) (emphasis added). The affidavit in this case sets forth the attorney’s qualifications and his opinion regarding reasonable attorney’s fees, but it provides no basis for his opinion. See Garcia v. Gomez, 319 S.W.3d 638, 648 (Tex.2010) (Johnson, J., dissenting) (disagreeing that an affidavit was probative evidence of reasonable attorney’s fees “because it does not contain the underlying factual basis on which it rests”). The reasonableness of an attorney’s fee has long been analyzed under the factors set forth in Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-19 (Tex.1997). While there does not need to be evidence on each factor, the affidavit must set forth facts “which would be admissible in evidence” for the affidavit to constitute proper summary judgment evidence. Cammack the Cook, 296 S.W.3d at 894 . The affidavit in this case sets forth no admissible evidence. It does not state what type of fee arrangement was made, what the attorney’s hourly fee was, what he actually charged his client, the amount of time it took, or indeed, that he actually performed any of the work. See Garcia, 319 S.W.3d at 645 (Jefferson, J., dissenting) (noting that the affidavit did not “state an amount of fees actually charged” or “the amount of time [the attorney] spent on this case or even his hourly rate” and noting that “[i]n no other area of the law would we credit such [statements] as ‘evidence’ ”). It is conclu-sory and, as such, cannot support an award of attorney’s fees.
The majority points to a number of cases with “similar affidavit testimony” which was found sufficient. However, of those opinions which contain a full description of the affidavit, the affidavit in this case falls below them all. See Giron v. *517 Baylor Univ. Med. Ctr., No. 05-09-00825-CV, 2011 WL 149981 , at *6 (Tex.App.Dallas Jan. 19, 2011, pet. denied) (mem. op.) (stating that the attorney provided his services based on the fee agreement); Peoples v. Genco Fed. Credit Union, No. 10-09-000S2-CV, 2010 WL 1797266 , at *7 (Tex.App.-Waco May 5, 2010, no pet.) (mem. op.) (noting that the attorney “investigated the facts surrounding this matter, [and] spent reasonable time in the defense of the suit,” and that the $7,500 amount was reasonable “based on the work performed by ... counsel, the traditional elements for determining a reasonable fee, the customary fees for work of a similar nature, [and] the responsibility assumed”); In re Estate of Tyner, 292 S.W.3d 179, 184 (Tex.App.-Tyler 2009, no pet.) (stating that attorney swore to personal knowledge of the services rendered). Shields v. Delta Lake Irrigation Dist., No. 13-01-00622-CV, 2006 WL 1280863 , at *8 (Tex.App.-Corpus Christi May 11, 2006, pet. denied) (mem. op.), simply states that an affidavit by counsel “supported its request” with no further details and thus provides no support for the majority’s position. Bethel v. Butler Drilling Co., 635 S.W.2d 834, 839 (Tex.App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.), involved testimony from the stand, not an affidavit, and did not recount all of the attorney’s testimony.
I understand that the majority feels bound by the supreme court’s ruling in Garcia . 1 However, I agree with the dissents by Justice Jefferson and Justice Johnson that the majority’s holding in Garcia is a significant departure from Arthur Andersen. See Garcia, 319 S.W.3d at 648 (Johnson, J., dissenting) (“Without saying why, the Court departs significantly from the evidence requirements for determining reasonable fees we set out in Arthur Andersen.”). To allow ipse dixit by a witness to transform into admissible evidence simply because it is the ipse dixit of an attorney creates a separate standard for expert testimony by attorneys that is enjoyed by no other occupation. To rationalize that disparate treatment of attorneys by stating that an opposing attorney has the means and knowledge to contest the requested amount is to effectively reduce the burden of proof on the party seeking attorney’s fees. See id. (Johnson, J., dissenting) (“[I]t is hard to see valid reasons for holding that conclusory testimony, which according to long-standing precedent has no probative force, is converted to evidence with probative value because an adverse party has information or knowledge about matters underlying the testimony.”). Surely we should not favor the legal profession by such a holding. Further, the facts of this case are distinguishable from Garcia in that this case does not arise under a statute requiring a mandatory award of attorney’s fees. I would reverse the trial court’s award of attorney’s fees to the appellees.
. The majority in Garcia found the affidavit in that case to be sufficient. "While the attorney’s testimony lacked specifics, it was not, under these circumstances, merely concluso-ry.” 319 S.W.3d at 641 (emphasis added). It should be acknowledged that Garcia was a case decided under the Texas Medical Liability Act, which requires a trial court, upon proper motion, to dismiss a claim and award reasonable attorney's fees and costs to a physician or provider. See Tex. Civ. Prac. Rem. Code Ann. § 74.351 (b)(2) (West 2011). The above-quoted language of the majority implicitly limits the applicability of the holding to the facts of a case where attorney’s fees are not discretionary.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5109228. Public record. Not legal advice.