                           COURT     OF APPEALS
                     FIFTH DISTRICT OF TEXAS
                                AT   DALLAS



                          NO.   05-88-01061-CV



AMERICAN 10-MINUTE OIL CHANGE, INC.,               FROM A DISTRICT COURT
BRICAR, INC., STEVEN J. SHIELDS,
E.M. DELOZIER, RALPH J. KAUFMANN,
DELF ANN DAWSON, MICHAEL A. HAMLIN,
CAREY MILLER AND BRIAN MILLER,

     APPELLANT,



v.




METROPOLITAN   NATIONAL   BANK-
FARMERS BRANCH,

     APPELLEE.                                   OF DALLAS COUNTY,   TEXAS


       BEFORE JUSTICE HOWELL,         LAGARDE AND WHITTINGTON
               DISSENTING OPINION BY JUSTICE HOWELL
                           AUGUST 15,     1989


     I dissent from the attorney's fee judgment.             That aspect


should be reversed and remanded for trial upon its merits.


     As stated in the majority's own authority:


          The purpose of rule 166-A is to avoid the
          conventional trial of clearly unmeritorious
          claims or untenable defenses. Its purpose is
          not to deprive litigants of their rights to a
          full, conventional trial if there are involved
          in the case any material questions of fact.


Ouerner Truck Lines v. Alta Verde Industries, 747 S.W.2d 464,


469 (Tex. App.—San Antonio 1988, no writ).                It is further
well established that summary judgments are not granted by

default.      Even though a motion for summary judgment is wholly


uncontroverted,       a trial court possesses the discretion,                       and


even    the    obligation,        to   deny       the     motion      unless   he    is


satisfied      that   the   movant's      claim         is    meritorious      or   the


opponent's      position    is    untenable.           We cannot override that


exercise      and   substitute     our   decision         for   the   discretion     of



the trial court.



        It is well established that a trial court is presumed to


be an expert as to attorney's fees.                     In a conventional trial,


where the claimant has presented no evidence whatever upon an


attorney's fee claim, the trial court may nevertheless award


a fee based upon its own expertise and its knowledge of the


services      rendered     as    disclosed        by    the   proceedings      in   the


case.      Conversely,      it is equally well-settled that in a

conventional trial where the court is acting as the finder of


fact, he may award less than the fee placed in evidence by

the claimant even though the opponent offers no opposition as
                                              2
to amount.           It is illogical to hold that a trial court,                   if,


as here,        it   is not convinced that the entire amount claimed


for attorney's fee is justified, has any less authority than


when he presides at a summary judgment hearing.


       Of course, it is not the purpose of the summary judgment


rule   to       substitute trial      by affidavit for a plenary trial


with     live        evidence,    either     with     or    without     a   jury    in


attendance.            In   a   conventional       trial,   if    the   trial   court


awards      a    lesser     fee   than the    one    placed      in evidence,      the


claimant is bound by the trial court's holding, even though


the evidence was uncontroverted.                    In order to obtain relief


in the appellate court,               he must show the judgment to be

legally         or     factually      insufficient.              The    disappointed

attorney's fee claimant in a summary judgment hearing is more

fortunate.           When the trial court below announced that it was

awarding less than the attorney's fee claimed, it was the

prerogative of appellee bank, as the summary judgment movant

to announce that it would not accept the award and to request
                                               3
that    the    attorney's       fee   claim       be    tried   upon    its   merits.


Appellee       may   not    cross-appeal          the     exercise     of     judicial


discretion by the court below in refusing to grant a summary


judgment for part of the recovery sought.


       The ultimate reason that this Court is committing error


is because it is making an award that the trial court refused


to make.        Our majority concedes that the trial court "could


have refused to award any attorney's fees" (slip op. 12).                            On


pure legal theory, the court probably erred in attempting to


award a lesser amount in order to expedite the disposition of


the    case.      However,      the   error was         harmless.       The    reason:


because claimant bank was free to accept or refuse the award


proffered by the trial court.                 Certainly, the opposing party

had    no      grounds     to   complain      because       it    had       failed   to

controvert the attorney's fee claim as to amount.


       However,      the error of the trial court is beside the

point.      In final analysis, our majority has found no grounds

to increase the attorney's fee award other than the default
                                              4
of     the       opposing        party.      This,   by     all    authorities,        is

improper.             Even further,       our majority has,         in effect,       held


that       a     trial      court    is    without   discretion—that            it   was


mandatory         that      a    default    be   imposed.         Truly,   we    cannot


rectify trial court error by committing error of our own.


       I therefore dissent as to the attorney's fee award.                           The


judgment should be reversed and remalid4d on this issue




DO   NOT       PUBLISH
TEX.   R.      APP.    P.   90
88-01061.DF
