      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-01-00080-CV



           Jerry L. Reasonover, Martha Reasonover and UMM, Inc./Commercial
                        Indemnity Insurance Company, Appellants

                                                   v.

         Commercial Indemnity Insurance Company/Jerry L. Reasonover, Martha
                        Reasonover and UMM, Inc., Appellees




          FROM THE DISTRICT COURT OF TRAVIS, 250TH JUDICIAL DISTRICT
          NO. 96-02353A, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING




                This is an appeal of a summary judgment rendered against appellants Jerry L.

Reasonover, Martha Reasonover and UMM, Inc. (collectively “the Reasonovers”) on Commercial

Indemnity Insurance Company’s (“Commercial Indemnity”) suit to recover for amounts it paid

pursuant to a performance bond issued to John Yunker and UMM, Inc. The Reasonovers challenge

the granting of the summary judgment against them. Commercial Indemnity also complains of the

trial court’s failure to award attorney’s fees expressly relating to an appeal of the judgment. We will

affirm the judgment of the trial court in all respects.


                               Factual and Procedural Background

                Commercial Indemnity issued a performance bond on behalf of Charles Yunker and

UMM, Inc., as contractors, to secure the performance of a construction contract to repair and
remodel an apartment complex for Tucker Family Investments One Limited Partnership (“Bond

Obligee”). In consideration for Commercial Indemnity’s issuance of the bond, an Agreement of

Indemnity was executed by John Yunker, and by J.L. Reasonover and Martha Reasonover,

individually and on behalf of UMM, Inc. Martha Reansonover signed the indemnity agreement

individually and in her capacity as president of UMM, Inc. By the indemnity agreement, the parties

agreed to:


       exonerate, hold harmless, indemnify and keep indemnified the SURETY [Commercial
       Indemnity] from and against any and all claims, demands and liabilities for losses,
       costs, and expenses of whatsoever kind or nature, including court costs, counsel fees,
       investigative costs, and from and against any and all other such losses and expenses
       which the SURETY may sustain or incur: (A) By reason of having executed or
       procured the execution of BONDS; (B) By reason of the failure of the
       CONTRACTOR or Indemnitors to perform or comply with any of the covenants or
       conditions of this Agreement; (C) In enforcing any of the covenants or conditions of
       this Agreement; (D) In making any investigation, obtaining or attempting to obtain
       a release, or recovering or attempting to recover loss or unpaid bond premium in
       connection with any BOND; (E) In prosecuting or defending any action or claim in
       connection with any Bond, . . . . In the event of any payment by the SURETY,
       the CONTRACTOR and Indemnitors agree . . . that the vouchers or other
       evidence of any such payments made by the SURETY shall be prima facie
       evidence of the fact and amount of the liability to the SURETY. (Emphasis
       added.)


Although Martha and Jerry Reasonover complain that Yunker was not authorized to sign the bond

on behalf of UMM, Inc.,1 they do not dispute that each signed the indemnity agreement in the

capacities and for the consideration stated therein.




       1
           The Reasonovers asserted this argument as a defense in the court below, but they do not
urge it as an issue in this appeal.

                                                  2
               The Bond Obligee subsequently sued the bond principals based on their alleged breach

of contract, breach of the implied warranty of good and workmanlike services, violation of the Texas

Deceptive Trade Practices Act and other torts in Cause No. 64-3591-A, filed in the 28th District

Court of Travis County, Texas. The suit sought $300,000 in actual damages as well as statutory and

exemplary damages.

               Commercial Indemnity defended the lawsuit and eventually settled it by paying the

Bond Obligee $22,500. In defending the suit, Commercial Indemnity also incurred attorney’s fees

in the amount of $24,548.82 and litigation expenses in the amount of $1,400.13. In turn, Commercial

Indemnity called upon Yunker, as Contractor, and the Reasonovers, as Indemnitors, to reimburse it

for the settlement, attorney’s fees, and litigation expenses incurred in connection with the Bond

Obligee’s claim. It is undisputed that neither Yunker nor the Reasonovers have tendered any payment

to Commercial Indemnity under the indemnity agreement.

               Commercial Indemnity then sued Yunker and the Reasonovers in the court below for

breach of the indemnity agreement seeking reimbursement of the amount of the settlement, attorney’s

fees, and litigation expenses incurred in defending the Bond Obligee’s lawsuit, as well as attorney’s

fees and costs incurred in suing to enforce the indemnity agreement. Yunker defaulted in the suit,

and the court severed Commercial Indemnity’s claims against the Reasonovers.

               In defense against these claims, the Reasonovers alleged that they participated in the

settlement negotiations in the underlying lawsuit and that they agreed to contribute only one-third,

or $7,500, of the settlement amount of $22,500. They also alleged that they had a separate

agreement with Commercial Indemnity that they would receive an offset of $3,500, which represented

                                                 3
a bond premium they allegedly paid but which Commercial Indemnity never earned. They asserted

this offset reduced their liability under the indemnity agreement to $4,000. The Reasonovers do not

dispute that they have not tendered any of the $4,000 they admit they owe.

                 Commercial Indemnity moved for summary judgment based upon the indemnity

agreement. It presented affidavits and documentation of the performance bond, indemnity agreement,

settlement drafts paid to the Bond Obligee, statements for legal services in connection with the

underlying lawsuit and drafts in satisfaction of those statements and other litigation expenses. It also

submitted excerpts of the oral depositions of the Reasonovers demonstrating that they were each

aware of the existence and effect of the bond and the indemnity agreement.

                 The Reasonovers filed a response to Commercial Indemnity’s motion for summary

judgment. In support of their response, they presented the affidavits of Martha and Jerry Reasonover.

These two affidavits are virtually identical in substance. Martha Reasonover’s affidavit states in

relevant part:


       3.    I did execute the Agreement of Indemnity. . . I signed the Agreement of
             Indemnity individually and as President of UMM, Inc.

             ***

       5.    On August 25, 1995, I attended a mediation in . . . Cause No. 94-3591-A [the
             Bond Obligee’s lawsuit]. The case was not settled at mediation, but
             subsequently settled in September 1995. In connection with the settlement,
             UMM, Inc. agreed to contribute $7,500.00 towards a total settlement of
             $22,500.00 to be paid to [the Bond Obligee]. I made this agreement as President
             of UMM, Inc. with Melvin Corley, attorney for Commercial Indemnity Insurance
             Company and John Yunker.

        6.   Subsequent to the settlement agreement in the [Bond Obligee’s] lawsuit, I spoke
             to Mr. Corley and Mr. Corley gave UMM, Inc. a credit of $3,500.00 against the

                                                   4
             $7,500.00 settlement contribution thereby reducing UMM, Inc.’s portion of the
             settlement to $4,000.00. The $3,500.00 credit represented a bond premium
             previously paid by UMM, Inc. to Commercial Indemnity Insurance Company.

        7.   Commercial Indemnity Insurance Company never requested payment of the
             $4,000.00 towards the settlement, but instead filed this action. 2


                On November 2, 2000, the trial court granted a summary judgment against the

Reasonovers on the principal sum of $47,048.82, pre-judgment interest of $23,857.26, and attorney

fees of $11,000.00. On December 1, 2000, the Reasonovers filed a motion for new trial which was

overruled by operation of law.


                                The Defense to the Indemnity Claim

                The Reasonovers challenge the granting of the summary judgment against them. The

propriety of a summary judgment is an issue of law for the court, subject to de novo review. Roland

v. DaimlerChrysler Corp., 33 S.W.3d 468, 469 (Tex. App.—Austin 2000, pet. denied). The

appellate court applies the following standards: (1) a summary judgment movant has the burden to

show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law;

(2) in determining whether a material fact issue exists, evidence favorable to the nonmovant is taken

as true; and (3) every reasonable inference is indulged in favor of the nonmovant. Nixon v. Mr. Prop.

Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Wallerstein v. Spirt, 8 S.W.3d 774, 780 (Tex.

App.—Austin 1999, no pet.).



        2
          Commercial Indemnity presented as summary judgment proof a letter dated January 26,
1996, from Melvin Corley to the Reasonovers and Yunker demanding payment of the full amount of
the settlement, as well as defense costs.

                                                    5
               An indemnity agreement is a promise to safeguard or hold harmless the indemnitee

against existing or future liability. Dresser Indus., Inc. v. Pate Petroleum, Inc., 853 S.W.2d 505, 508

(Tex. 1993). Generally, an indemnity provision obligates the indemnitor to protect the indemnitee

against claims brought against it by third persons who are not parties to the indemnity contract.

Wallerstein, 8 S.W.3d at 780. The agreement creates a potential cause of action in favor of the

indemnitee against the indemnitor. Dresser Indus., Inc., 853 S.W.2d at 508. In order for a settling

indemnitee to recover the amount paid in settlement from its indemnitor, it must show the

indemnitor’s potential liability to a claimant and that the settlement was reasonable, prudent and made

in good faith under the circumstances. Amerada Hess Corp. v. Wood Group Prod. Tech., 30 S.W.3d

5, 10 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

               Nothing in the record indicates that the Reasonovers contested either Yunker or

UMM, Inc.’s liability exposure in the Bond Obligee’s suit or the reasonableness, prudence and good

faith of Commercial Indemnity’s settlement of that suit. Rather, the record shows that both Martha

and Jerry Reasonover participated in the settlement negotiations and were aware of and apparently

assented to the terms of the settlement with the Bond Obligee.

               Commercial Indemnity’s summary judgment proof established its right to judgment

on its indemnity claim as a matter of law. It proved the existence and terms of the indemnity

agreement and its payment of sums in defense and settlement of the underlying lawsuit. See Shaw

v. Massachusetts Bonding & Ins. Co., 373 S.W.2d 553, 558 (Tex. Civ. App.—Dallas 1963, no writ)

(holding, in suit to recover on performance bond, that presentation of vouchers or drafts reflecting




                                                  6
payment of settlement is sufficient evidence in light of contractual provision that such exhibits were

to be “conclusive evidence of the fact and extent of the liability of the surety.”).

                The Reasonovers, however, claim that their affidavits establish the affirmative defenses

of offset and some species of settlement. Their defenses are premised on two oral agreements that

Martha Reasonover allegedly made with Commercial Indemnity’s attorney, Melvin Corley. The only

mention in the record of these agreements is contained in the two Reasonover affidavits. The

Reasonovers contend that their affidavits were sufficient to raise a fact issue as to the indemnity claim.

We disagree.

                Commercial Indemnity filed written objections to the Reasonover’s affidavits objecting

based on hearsay, among other things. The trial court impliedly sustained their objections by granting

the summary judgment. See Tex. R. App. P. 33.1(a)(2)(A). This objection is well-founded. See

Natural Gas Clearinghouse v. Midgard Energy Co., 23 S.W.3d 372, 380 (Tex. App.—Amarillo

2000, pet. denied).

                The Reasonovers’ affidavits do not detail the facts surrounding the making of either

an agreement to limit the Reasonovers’ liability for the settlement or an agreement to offset their

liability with a premium they allegedly paid at some earlier date. They also fail to set forth the terms

and parameters of the alleged agreements. They tendered no documentary evidence to corroborate

the affidavit testimony, e.g., correspondence regarding the settlement agreement or drafts showing

payment of the particular premium involved in the offset claim. Further, Martha Reasonover’s




                                                    7
affidavit asserts merely that UMM, Inc. agreed to contribute an amount toward the settlement and

that the attorney agreed to reduce that amount with an offset. Neither affidavit even suggests that by

agreeing to contribute to a settlement, and receive an offset against that settlement contribution, that

Commercial Indemnity agreed to limit the Reasonovers’ liability under the parties’ indemnity

agreement to that amount.

                We note that both the Reasonovers are interested witnesses so that any testimonial

evidence by them must be “clear, positive and direct, and otherwise credible and free from

contradictions and inconsistencies, and could have been readily controverted.” See Tex. R. Civ. P.

166a(c). Moreover, the pertinent testimony in the affidavits is conclusory. They merely describe

Martha Reasonover’s personal interpretation and opinions about her alleged uncorroborated

conversations with a third party. It is clear from Jerry Reasonover’s affidavit that his testimony

regarding the alleged agreements was not based on his personal knowledge. Without personal

knowledge and more specific factual details about the alleged agreements with Commercial

Indemnity, these affidavits cannot be considered competent summary judgment evidence. See

Avinger v. Campbell, 499 S.W.2d 698, 702 (Tex. Civ. App.—Dallas 1973), writ ref’d n.r.e., 505

S.W.2d 788 (Tex. 1974) (per curiam) (holding that affidavit testimony amounting to “interpretations

of conversations not otherwise detailed and . . . opinions concerning the legal effect of transactions

not factually described” and showing a lack of personal knowledge was not competent summary

judgment evidence).

                We overrule the Reasonovers’ sole issue on appeal.




                                                   8
                             Cross-appeal: Appellate Attorney Fees

               Commercial Indemnity’s cross-appeal complains of the trial court’s refusal to award

it appellate attorneys fee. The original petition pleaded for recovery of attorney fees and legal

expenses incurred in collecting under the indemnity agreement. The summary judgment motion

sought and presented evidence on a claim for attorney fees, including an express request for

conditional attorney fees if the Reasonovers appealed the summary judgment.3 The judgment

awarded Commercial Indemnity $11,000.00 in attorney fees for prosecution of the collection action,

but did not segregate the fees for any particular phase of proceedings or expressly provide for

appellate attorney fees. The judgment states:


       IT IS FURTHER ORDERED that all relief requested by Plaintiffs is granted and that
       Plaintiff have and recover from Defendants the sum of $47,048.82, together with pre-
       judgment interest in the sum of $23,857.26. ¶ IT IS FURTHER ORDERED that
       Plaintiff have and recover . . . attorneys’ fees in the amount of $11,000 incurred in the
       prosecution of this suit.


               Commercial Indemnity argues that, because it requested appellate attorney fees and

the trial court granted its motion, the trial court effectively awarded it appellate attorney fees but

failed to set forth appellate attorney fees in the judgment. We disagree. The judgment plainly

awarded a specific amount of attorney fees for “prosecution of this suit,” which could include

appellate matters. Commercial Indemnity’s motion differentiated between attorney fees for trial work

and appellate work, but the judgment did not.



       3
         We note that the issue of attorney fees in responding to an appeal by the Reasonovers is no
longer contingent in nature.

                                                  9
                On December 22, 2000, Commercial Indemnity filed a Plaintiff’s Motion For

Judgment Nunc Pro Tunc in which it asserted that the court’s failure to award it appellate attorney

fees was a clerical error. It sought to have the November 2, 2000, order vacated and another

judgment substituted therefor. On January 19, 2001, the trial court held a hearing on that motion at

which argument, but no evidence, was presented.

                Commercial Indemnity moved for judgment nunc pro tunc. A trial court may make

substantive, judicial rulings only while it has plenary power in a case. Andrews v. Koch, 702 S.W.2d

584, 585 (Tex. 1986); Tex. R. Civ. P 316 & 317. After its plenary power expires, a trial court has

no power to correct a substantive or judicial mistake. Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.

1973). A trial court may then correct only non-substantive, clerical mistakes in the judgment. West

Texas State Bank v. General Res. Mgmt Corp., 723 S.W.2d 304, 306 (Tex. App.—Austin 1987, writ

ref’d n.r.e.). If a trial court renders a judgment after its plenary power lapses correcting a non-judicial

clerical error, the judgment is termed a “judgment nunc pro tunc.” By definition, such a judgment

may only be rendered after plenary power has expired.

                At the time the trial court ruled on Commercial Indemnity’s motion, it retained its

plenary powers so that rendition of a nunc pro tunc judgment would have been inappropriate.

Although Commercial Indemnity labeled its request a motion for judgment nunc pro tunc, we will not

elevate form over substance as the Reasonovers urge. Commercial Indemnity sought to modify the

judgment to provide for recovery of additional attorney fees. The substance of the motion was

sufficient to present the issue of appellate attorney fees to the trial court and preserve the issue for

appeal.


                                                    10
               Although the trial court recognized the misnomer in Commercial Indemnity’s motion,

that misnomer was not the only basis on which it could deny appellate attorney fees. The trial court

could have concluded that the affidavit submitted was internally inconsistent with respect to the proof

of attorney fees.

               In support of its claim for attorney fees, Commercial Indemnity submitted the affidavit

of attorney Karen J. Gregory, who testified in relevant part:


       Considering the time spent in the investigation and preparation of the lawsuit,
       including drafting the various letters, pleadings, discovery and the motion for
       summary judgment, it is my opinion that $11,000.00, is a reasonable amount of
       attorneys’ fees and expenses for representation of the Plaintiff through the hearing on
       the Motion for Summary Judgment. 5. In addition, the amount of $11,000.00 is a
       reasonable amount for attorneys’ fees in the event an appeal to the Court of Appeals
       is made. The additional sum of $5,000.00 in attorneys’ fees is reasonable in the event
       CIIC must file its brief in an appeal to the Supreme Court of Texas and an additional
       sum of $2,500.00 in attorneys’ fees is reasonable in the event of an oral argument
       before the Supreme Court.


It is unclear whether the affiant was testifying to an $11,000.00 figure for an appeal to the court of

appeals in addition to $11,000.00 for prosecution of the case through the summary judgment hearing

or whether work on both the trial and initial appellate levels were included in the same $11,000.00.

In its brief, Commercial indemnity recognizes an ambiguity and states:


               Even if the conflict with the summary judgment evidence and the
               request for attorneys’ fees in the Summary Judgment Motion
               prevented the Trial Court from awarding appellate attorneys’ fees, the
               Trial Court had discretion to award what it deemed a reasonable
               amount . . .in the event of . . .appeal.




                                                  11
                In any event, Commercial Indemnity must demonstrate that the trial court’s award of

$11,000 for all matters in this case constituted an abuse of discretion. A trial court clearly has

discretion in assessing whether to award attorney fees and the amount of attorney fees to be awarded

in a particular case. Here, the amount the trial court awarded falls within the range of proof

presented. Based on the record before us, we cannot conclude that the trial court abused its

discretion in awarding attorney fees. See, e.g., McFadden v. Bresler Malls, Inc., 548 S.W.2d 789,

790 (Tex. Civ. App—Austin 1977, no writ) (courts have discretion to determine the amount of

attorney fees in light of their experience as justices and as lawyers, the record as a whole, the

testimony and the amount in controversy.); Leggett v. Brinson, 817 S.W.2d 154, 157 (Tex. App.—El

Paso 1991, no writ); Argonaut Ins. Co. v. ABC Steel Prods., Co., 582 S.W.2d 883, 889 (Tex. Civ.

App.—Texarkana 1979, writ ref’d n.r.e.).

                The judgment of the trial court awarding Commercial Indemnity the principal sum of

$47,048.82, pre-judgment interest of $23, 857.26 and $11,000.00 of attorney fees for “prosecution

of this suit” is affirmed.




                                              Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Affirmed

Filed: October 4, 2001

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