      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         ON REHEARING


                                        NO. 03-12-00558-CV



                 Happy Jack Ranch, Inc. and Frederick J. Behrend, Appellants

                                                   v.

   HH&L Development, Inc.; Matthew Stolhandske, Trustee; Michael Strnad, Appellees


     FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
       NO. C2010-1022A, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 We withdraw the opinion and judgment dated March 27, 2015, and substitute

the following opinion and judgment in their place. We deny appellee Michael Strnad’s motion

for rehearing.

                 This appeal from a suit to quiet title arises from a colorful and ultimately ill-fated

business relationship between Frederick J. Behrend and Michael Strnad. Behrend and Strnad were

engaged in the bail-bond business. During the 1990s, Behrend’s company—Happy Jack Ranch,

Inc.—deeded several tracts of land in Comal County to Strnad. Although the general warranty deeds

did not identify any trust or beneficiary status, Behrend and Happy Jack Ranch (collectively

appellants) contend there was an oral agreement that Strnad would hold only nominal title to the
properties in trust for Behrend’s benefit. The appellants contend the purpose of the conveyances was

to allow Strnad to use the properties as security for issuing bail bonds.

               In June 1998, a federal grand jury indicted Strnad and Behrend for tax evasion

and other tax violations arising from their bail-bond business. Strnad pleaded guilty to a lesser

charge of failing to file a tax return and received probation. Behrend, however, pleaded guilty to

the charged offenses and was sentenced to fifteen years’ imprisonment. The factual basis Behrend

signed in support of his plea stated that he had conspired to defraud the IRS from collecting income

taxes on revenues earned on his bail-bond business, in part by placing his assets in Strnad’s name,

and then later attempting to murder Strnad to prevent him from providing incriminating evidence.

               In 2001, while Behrend was in prison for these crimes, Strnad conveyed title to the

four properties at issue here to Matthew Stolhandske. Stolhandske conveyed the same properties to

HH&L Development, Inc., in 2004. Both Stolhandske and HH&L waited until 2005 to record

the deeds with the county clerk. In July 2010, the appellants filed this suit to quiet title against

Strnad, Stolhandske, and HH&L (collectively appellees) seeking to have the deeds to Stolhandske

and HH&L declared void based on a default judgment taken against Strnad in a previous suit. The

trial court granted Strnad’s motion to dismiss the appellants’ claims and entered a final judgment

awarding Strnad $20,750 in attorney fees. Based on our conclusion that limitations bars the

appellants’ claims, we affirm the trial court’s judgment dismissing appellants’ claims. Because there

is no evidence to support the reasonableness and necessity of the amount of attorney fees, however,

we reverse the trial court’s award of attorney fees.




                                                  2
                                PROCEDURAL BACKGROUND

                The business relationship between Behrend and Strnad has generated many

civil lawsuits and criminal investigations. As the parties are familiar with the complex procedural

background of this suit, we will discuss only those facts necessary to render our decision. See

Tex. R. App. P. 47.1 (stating appellate court opinions should be as brief as practicable in addressing

issues necessary to final disposition), 47.4 (stating memorandum opinions should be no longer than

necessary to advise parties of court’s decision and basic reasons for it).

                The lengthy civil litigation battle among the parties to this suit began in April 2003,

almost two years after Strnad deeded the properties at issue to Stolhandske. In the first lawsuit,

Behrend sued both Strnad and Stolhandske, alleging that Strnad held real-estate properties in

trust for his benefit and that Strnad and Stolhandske had conspired to deprive him of his property

by transferring the titles to Stolhandske.1 In October 2001, while the first suit was pending, Behrend

filed a second suit in the same county. The second suit, however, was against Strnad only and sought

a declaration that he held several properties in trust for Behrend’s benefit, including the four tracts

at issue here. Behrend filed the second suit more than two years after Strnad had transferred title

to the properties, but Behrend did not sue nor seek a declaration against Stolhandske. After Strnad

failed to file an answer in the second suit, the trial court entered a default judgment on December 17,

2003, declaring that Strnad held the properties in trust for Behrend’s benefit and vesting Behrend

with lawful title.


        1
         Strnad transferred multiple properties to Stolhandske, only four of which are at issue here.
The record is unclear as to whether Behrend’s original petition in the prior suit sought a declaration
regarding these four tracts.

                                                  3
                 In October 2009, Behrend nonsuited the lawsuit against Strnad and Stolhandske. The

following year, in July 2010, the appellants filed the underlying lawsuit against Strnad, Stolhandske,

and HH&L Development, seeking to quiet title to the four tracts of land. The appellants alleged that

Behrend was the lawful owner of the properties under the default judgment and that the deeds to

Stolhandske and HH&L were void and clouded his title. The appellants also asserted that Strnad and

Stolhandske had been aware of Behrend’s equitable interest in the properties. Strnad filed a motion

to dismiss and motion for summary judgment in response, in which the other defendants joined,

contending that Behrend lacked standing to challenge the conveyances because he was not a named

beneficiary under the deeds and asserting the affirmative defenses of limitations, res judicata and

in pari delicto.2 After a hearing, the trial court granted the motion to dismiss without specifying

the grounds for the ruling. Strnad then filed a motion for attorney fees, to which the appellants

objected, but after a hearing, the trial court issued a final judgment that awarded Strnad $20,750 in

attorney fees.

                 On appeal, the appellants contend the trial court erred in granting the motion to

dismiss because: (1) the motion was an impermissible collateral attack on Behrend’s 2003 default

judgment; (2) the appellants have standing to challenge the deeds and the motion to dismiss was an

improper procedural vehicle for asserting affirmative defenses; and (3) the appellees failed to

prove their affirmative defenses as a matter of law. The appellants also challenge the trial court’s




       2
           The affirmative defense of in pari delicto requires Texas courts, as a general rule, to deny
relief to a party to an illegal contract. See Lewis v. Davis, 199 S.W.2d 146, 151 (Tex. 1947); Geis
v. Colina Del Rio, LP, 362 S.W.3d 100, 106 (Tex. App.—San Antonio 2011, pet. denied).

                                                  4
award of attorney fees, contending that Strnad’s evidence of attorney fees was inadmissible and that

there were no statutory grounds for awarding fees.


                                     MOTION TO DISMISS

                  The complex history of these properties presents a morass of legal issues, but

the dispositive issue for this appeal is whether the statute of limitations bars the appellants

from raising any of those legal issues in a suit filed almost a decade after Strnad transferred title

to the properties. As a preliminary matter, however, we must first dispose of appellants’ procedural

complaint regarding Strnad’s use of a motion to dismiss to assert the affirmative defense

of limitations.

                  As the appellants suggest, affirmative defenses such as limitations are not

typically disposed of in connection with a motion to dismiss, but through a motion for summary

judgment, sometimes special exceptions, or at trial. See, e.g., In re D.K.M., 242 S.W.3d 863, 865

(Tex. App.—Austin 2007, no pet.) (noting “affirmative defense such as running of limitations should

be raised through a motion for summary judgment, not through a motion to dismiss”); Tullis

v. Georgia-Pac. Corp., 45 S.W.3d 118, 128 (Tex. App.—Fort Worth 2000, no pet.) (“defendant

seeking a dismissal based on an affirmative defense such as statute of limitations must first file a

special exception or a motion for summary judgment giving the plaintiff an opportunity to respond”).

But before raising the issue in his motion to dismiss, Strnad filed a motion for summary judgment

urging limitations grounds, giving appellants time to respond, see Tex. R. Civ. P. 166a, and

then incorporated that motion into his amended motion to dismiss. See Tullis, 45 S.W.3d at 128

(defendant seeking dismissal on affirmative defense must first file special exception or motion for

                                                 5
summary judgment giving plaintiff opportunity to respond). The other defendants joined Strnad’s

summary-judgment motion and also filed their own summary-judgment motions urging limitations.

Moreover, after Strnad filed his summary-judgment motion, Behrend amended his pleadings

twice and filed a response asserting the same defense to limitations that he raises in this appeal. See

Hunter v. Johnson, 25 S.W.3d 247, 250 n.5 (Tex. App.—El Paso 2000, no pet.) (reversing judgment

on motion to dismiss based on limitations because trial court did not give plaintiff opportunity to

respond that would have been available under motion for summary judgment). We hold that, under

these particular facts, the limitations issue was properly before the trial court in a summary-judgment

posture, and we will review the trial court’s judgment accordingly. See Briggs v. Toyota Mfg.,

337 S.W.3d 275, 281 (Tex. App.—San Antonio 2010, no pet.) (reviewing dismissal under summary-

judgment standard); Pipes v. Hemingway, 358 S.W.3d 438, 447 (Tex. App.—Dallas 2012, no pet.)

(same); cf. O’Carolan v. Hopper, 414 S.W.3d 288, 297 n.4 (Tex. App.—Austin 2013, no pet.)

(concluding procedural error resulting from asserting limitations defense through motion to strike

pleadings not cured by filing summary judgment on different grounds).3


                                           LIMITATIONS

                In their substantive limitations complaint, appellants maintain that, even though it

seeks to set aside deeds executed almost a decade ago, their suit is viable because it is a suit to quiet


        3
           Because the standard of review for summary judgments is well known, we will not review
it here, other than to cite to some relevant supreme court cases and the controlling rule of procedure.
See Tex. R. Civ. P. 166a; see, e.g., KMC Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015)
(generally and as to affirmative defenses); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005) (generally); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548–49 (Tex. 1985)
(generally).

                                                   6
title, which is not subject to limitations. But appellants are only partially correct: “[A]n equitable

action to remove cloud on title is not subject to limitations if a deed is void or has expired by its own

terms.” Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex. 2007) (emphasis added). “But

the same rule does not apply when a deed is voidable rather than void.” Id. If a deed is merely

voidable, the four-year statute of limitations will apply to the suit. Id.

                In this case, if the four-year statute of limitations applies, the limitations period began

to run, at the very latest, when Stolhandske and HH&L recorded their deeds—on June 24, 2005, and

April 18, 2005, respectively. See Tex. Prop. Code § 13.002 (recorded deed is notice to all persons

of existence of instrument). Behrend, however, filed this lawsuit on July 26, 2010, which is well

outside the four-year limitations period. Consequently, we need not determine the exact date of

accrual because, regardless of which date we apply, the lawsuit was not filed within the four-year

limitations period.4 Thus, the question before us is whether the deeds were void or merely voidable

and subject to limitations. See id.

                The question of whether a deed is void or voidable depends on its effect upon the title

at the time it was executed and delivered. Slaughter v. Qualls, 162 S.W.2d 671, 674 (Tex. 1942);

Poag v. Flories, 317 S.W.3d 820, 825 (Tex. App.—Fort Worth 2010, pet. denied). A void deed

is “without vitality or legal effect.” Slaughter, 162 S.W.2d at 674. Conversely, a voidable deed

“operates to accomplish the thing sought to be accomplished, until the fatal vice in the transaction

has been judicially ascertained and declared.” Id. “When a deed is merely voidable, equity will

not intervene as the claimant has an adequate legal remedy.” Ford, 235 S.W.3d at 618. Thus, “if

        4
         There is evidence in the record that Behrend discovered the conveyances before the deeds
were recorded.

                                                    7
removal of the cloud depends on a tort or contract claim, it must be brought within the applicable

limitations period.” Ditta v. Conte, 298 S.W.3d 187, 192 (Tex. 2009). A party may not attack a

facially valid, and thus voidable, deed merely by pleading in equity. Ford, 235 S.W.3d at 618.

                Here, the appellants’ suit to quiet title turns on the validity of Strnad’s conveyances

to Stolhandske. At the time of these conveyances, Strnad held title to the properties at issue through

general warranty deeds from Happy Jack. As the deeds from Happy Jack did not identify a trust

or a beneficiary, the chain of title showed that Strnad held fee-simple title to the properties. Thus,

on the face of the titles, Strnad had the legal authority to convey the deeds, and the conveyances

to Stolhandske were facially valid and effective at the time of execution. Further, the fact that the

deeds were not immediately recorded did not render the conveyances void. Recording a deed is not

necessary to pass title. Thornton v. Rains, 299 S.W.2d 287, 288 (Tex. 1957). An unrecorded deed

is binding on the parties to the conveyance and is only “void as to a creditor or to a subsequent

purchaser for valuable consideration without notice.” Tex. Prop. Code § 13.001. Here, Behrend is

not a creditor or subsequent purchaser. Therefore, the delay in recording did not render the deeds

void. See id.

                Accordingly, we conclude that—when the deeds were executed—the conveyances

to Stolhandske were facially valid, and thus merely voidable and subject to limitations. The question

remains, however, as to the effect of the declaratory judgment against Strnad that he held the

properties in trust and vesting Behrend with title, but entered after Strnad had already effectively

deeded the properties to Stolhandske and without his joinder. “A final judgment that establishes title

or right to possession in an action to recover real property is conclusive against the party from



                                                  8
whom the property is recovered and against a person claiming the property through that party by a

title that arises after the action is initiated.” Id. § 22.003. Here, however, Stolhandske was not a

party to the lawsuit and obtained title to the properties before Behrend initiated the proceedings. As

such, we cannot conclude that the default judgment rendered Stolhandske’s deeds void. See id.;

Richardson v. Reid, 188 S.W.2d 248, 252–53 (Tex. Civ. App.—Beaumont 1945, no writ) (judgment

involving interest in land does not limit or defeat interest already vested in person who was not

made party to suit).

                Moreover, regardless of whether Strnad held the properties in trust for Behrend,

the existence of the trust would not render Strnad’s prior conveyances to Stolhandske void. The

Legislature has provided that when “property is conveyed or transferred to a trustee in trust but the

conveyance or transfer does not identify the trust or disclose the names of the beneficiaries, the

trustee may convey, transfer, or encumber the title to the property without subsequent question by

a person who claims to be a beneficiary under the trust.” Tex. Prop. Code § 114.082. As the deeds

from Happy Jack to Strnad did not disclose a trust or a beneficiary, Strnad had statutory authority

to convey title to the property “without subsequent question” from Behrend. See id. As such, the

existence of the trust would not render Strnad’s prior conveyances void.5

                We hold that limitations bars the appellants’ claims and affirm the judgment of the

trial court dismissing the appellants’ suit to quiet title.


        5
           Behrend pleaded in this suit that Strnad and Stolhandske were aware of his beneficial
interest in the properties and, in prior suits, has alleged that they conspired to defraud him of his
property. We note that, at best, this allegation would render the deeds merely voidable and subject
to limitations. “Deeds obtained by fraud are voidable rather than void, and remain effective until
set aside.” Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex. 2007).

                                                    9
                                        ATTORNEY FEES

               In their second issue, appellants challenge the legal sufficiency of the evidence

supporting the trial court’s award of $20,750 in attorney fees. Specifically, they argue that there is

no evidence of the reasonableness and necessity of the amount awarded and, for that reason, the

trial court abused its discretion in awarding attorney fees. We agree.

               Although the trial court did not specify a statutory or contractual basis on which it

awarded attorney fees, see MBM Fin. Corp. v. The Woodlands Operating Co., 292 S.W.3d 660, 669

(Tex. 2009) (“Texas has long followed the ‘American Rule’ prohibiting [attorney-]fee awards unless

specifically provided by contract or statute.”), and Strnad’s live pleadings were likewise nonspecific

as to the authority, see Bullock v. Regular Veterans Ass’n of U.S., Post No. 76, 806 S.W.2d 311, 315

(Tex. App.—Austin 1991, no writ) (“general allegation” of entitlement to attorney fees is sufficient

if opposing party fails to specially except to lack of specificity), Happy Jack Ranch’s suit against

Strnad sought a declaration under the Uniform Declaratory Judgments Act, which allows trial courts

to “award costs and reasonable and necessary attorney’s fees as are equitable and just,” Tex. Civ.

Prac. & Rem. Code § 37.009, and Strnad’s successful limitations argument, as discussed above,

relied on provisions of the Texas Trusts Code, which allows a trial court to award “reasonable and

necessary attorney’s fees as may seem equitable and just” in any proceeding under the Trust Code,

Tex. Prop. Code § 114.064(a).6 Thus, under either statutory basis, Strnad was required to prove

       6
          Although Strnad’s motion also asserted that the trial court could award attorney fees as
sanctions, the trial court did not make the required findings or otherwise specify any acts or
omissions by the appellants that would support an award of attorney fees as sanctions. See Tex. Civ.
Prac. & Rem. Code §§ 10.002(a)(8) (authorizing reasonable attorney fees for violation of frivolous-
pleadings provisions), .005 (“A court shall describe in an order imposing a sanction under this
chapter the conduct the court has determined violated Section 10.001 and explain the basis for the

                                                 10
reasonableness and necessity. See Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014) (citing Bocquet

v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)).

               Presumably in an effort to satisfy this requirement, Strnad attached various exhibits

to his motion for attorney fees (and to a later-filed supplement to that motion) that purport to

support the reasonableness and necessity of the attorney fees awarded by the trial court. See Woollett

v. Matyastik, 23 S.W.3d 48, 52 (Tex. App.—Austin 2000, pet. denied) (noting that expert “evidence

must be presented on the[] issue [of the reasonableness and necessity of the amount requested] to

support an award of attorney’s fees”); see also, e.g., Long, 442 S.W.3d at 255 (discussing evidence

required to show reasonableness and necessity). But these exhibits were not admitted into evidence,

are not included in the reporter’s record before this Court, and as a result, cannot be considered

on appeal. See Tex. R. App. P. 34.6 (reporter’s record consists of transcript of proceedings and

exhibits); Vanscot Concrete Co. v. Bailey, 862 S.W.2d 781, 783 (Tex. App.—Fort Worth 1993, aff’d

894 S.W.2d 757 (“Our duty, as an appellate court, is to consider only the testimony adduced and the

evidence tendered and/or admitted at the time of trial.”); Noble Exploration, Inc. v. Nixon Drilling,

Co., 794 S.W.2d 589, 592 (Tex. App.—Austin 1990, no writ) (holding that documents not

introduced into evidence at trial may not be considered on appeal). Documents attached to

pleadings are not evidence unless they are offered and admitted as evidence by the trial court.

Guerinot v. Wetherell, No. 01–12–00194–CV, 2013 WL 2456741, at *5 (Tex. App.—Houston



sanction imposed.”); Tex. R. Civ. P. 13 (authorizing reasonable attorney fees for groundless or bad-
faith pleadings, but requiring they not be “imposed except for good cause, the particulars of
which must be stated in the sanction order”). Regardless, an award of attorney fees as sanctions
would still require evidence of its reasonableness. See Tex. Civ. Prac. & Rem. Code § 10.002(a)(8);
Tex. R. Civ. P. 13.

                                                 11
[1st Dist.] June 6, 2013, no pet. (mem. op.) (“Simply attaching a document to a pleading neither

makes the document admissible as evidence nor dispenses with proper foundational evidentiary

requirements.” (citing Atchison v. Weingarten Realty Mgmt. Co., 916 S.W.2d 74, 76–77

(Tex. App.—Houston [1st Dist.] 1996, no writ))); Ceramic Tile Int’l, Inc. v. Balusek, 137 S.W.3d

722, 724 (Tex. App.—San Antonio 2004, no pet.) (same). And, more significantly here, because

these exhibits were not introduced into evidence, they do not provide evidentiary support for

the district court’s award of attorney fees. See Guerinot, 2013 WL 2456741, at *5 (vacating

turnover order because plaintiff’s failure to offer into evidence list of defendant’s property meant that

she did not meet her burden of showing exempt property, despite fact that list was attached to

pleading); In re E.W., No. 05–01–01463–CV, 2002 WL 1265541, at *2 (Tex. App.—Dallas June 7,

2002, pet. denied) (mem. op.) (not designated for publication) (holding that evidence was legally

insufficient to support termination because affidavit of relinquishment had not been offered

or admitted into evidence and, as such, was not part of record); see also, e.g., Dow Chem. Co.

v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (reviewing court examines record for evidentiary

support).

                As part of our legal-sufficiency review on this issue, we have carefully examined

the record in this case, but have found no evidence addressing the reasonableness of the amount

of attorney fees awarded by the trial court. See Burbage v. Burbage, 447 S.W.3d 249, 259–60

(Tex. 2014) (examining entire record in no-evidence review). In fact, the reporter’s record in this

case indicates that no exhibits were admitted into evidence and no witnesses testified to the court.7

        7
         Although the parties filed motions for summary judgment with attached exhibits, those
exhibits are not considered evidence outside the summary-judgment context unless they are

                                                   12
It consists merely of the transcripts of the two hearings held by the trial court—the motion to dismiss

and the motion for attorney fees.

               Strnad disagrees that there is no evidence to support the awarded attorney fees,

urging that, although not under oath, his attorney’s argument to the trial court during the hearing on

attorney’s fees constituted sworn testimony that provided evidence to support the attorney-fees

award. First, Strnad contends that appellees waived the requirement that an attorney’s statements

to the court must be under oath to be considered evidence by failing to object when his counsel was

testifying at the hearing. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (noting “opponent

of [attorney’s] testimony can waive the oath requirement by failing to object when the opponent

knows or should know that an objection is necessary”). Thus, Strnad continues, when his attorney

made the following statement during the hearing, he provided both testimonial and documentary

evidence to support the reasonableness and necessity of the awarded attorney fees:


               The designation of me [as] an expert was timely, at the very, very first month
       of discovery. There was really nothing to say about fees at that point. Nothing had
       happened. We went all the way through discovery. And—and I have given him—I
       have given him a proffer which I affirm and swear today is true and correct. I gave
       him a proffer, and I did attach his fees, but I also, at the end, attached my fees, Your
       Honor, to that same proffer. And so he has my time account and his time account.



admitted into the trial court’s record. See Tex. R. Civ. P. 166a(a) (allowing supporting affidavits
to accompany summary-judgment motion); Celadon Trucking Servs., Inc. v. Titan Textile Co., Inc.,
130 S.W.3d 301, 307 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (“The parties’ summary-
judgment affidavits and evidence were not admitted at trial. On appeal from a trial on the merits,
we cannot consider summary-judgment evidence that was not admitted in evidence at trial.”); Noble
Exploration, Inc. v. Nixon Drilling, Co., 794 S.W.2d 589, 592 (Tex. App.—Austin 1990, no writ)
(“Although the contract was attached to Nixon’s reply to Anthony’s motion for partial summary
judgment, it was not introduced into evidence at trial on the merits, and we may not consider it
on appeal.”).

                                                  13
               And one of the principal reasons they were attached in juxtaposition there is
       because he has asked to be awarded for 60 point—62.3 hours of time to that point,
       and my time through that period is 62.65 hours. So our time is basically the same on
       the case, and that’s not unexpected. The motions and responses were tit for tat. The
       court appearances were tit for tat. So the Court would expect them to be perfectly
       comparable.


Strnad contends that the above “testimony” as to the comparability of attorney fees gave the

trial court an evidentiary basis to determine the reasonableness of the fee award. Strnad likewise

reasons that the above “testimony” affirming and swearing to the truth and correctness of the proffer8

transformed the documents attached to his motion into a “sworn proffer.” We disagree.

               Strnad’s counsel was not providing any information about the reasonableness

and necessity of his attorney fees. In fact, he was not providing any substantive information about

the fees at all, at least not to the extent that opposing counsel would know or should know to object

to the information as being testimony. See id. at 272 (noting that oath requirement can be waived

if opponent fails to object when “opponent knows or should know that an objection is necessary”).

Virtually the entire hearing from which this excerpt was taken was spent, not on the amount,

reasonableness, or justification for attorney fees, but on whether Strnad would even be allowed

to present evidence of his attorney fees. Specifically, Strnad’s counsel, who had the majority of

the time at the hearing, spent his allotment of time responding to appellants’ motion to strike

Strnad’s attorney-fees evidence, which was based on appellants’ argument that Strnad had failed to

sufficiently supplement his discovery responses. See Tex. R. Civ. P. 193.6(a) (requiring trial court


       8
          Strnad’s motion for attorney fees is titled “Brief and Proffer in Support of Strnad’s Motion
for Attorney’s Fees and For Anti-Suit Injunction” and his supplement to that motion is similarly
titled, “Supplemental Brief and Proffer in Support of Strnad’s Motion for Attorney’s Fees and For
Anti-Suit Injunction And Response to Behrend’s Motions to Strike and For Clarification.”

                                                 14
to exclude evidence for failure to timely supplement discovery response). As such, the above-quoted

statement was part of Strnad’s response to the discovery-related allegations. It was not an attempt

to prove any facts regarding the attorney fees themselves, including their reasonableness or necessity,

but only arguing that his client should be allowed to present the evidence at all.

                 Relatedly, although Strnad suggests that his counsel’s comments regarding the

comparability of fees offer some support for those fees, his attorney raised that issue in an effort to

ward off an argument that the late supplement would unfairly surprise or prejudice the appellants:


          Your Honor, there’s just no way he can be unfairly surprised or prejudiced when my
          fees are exactly what he asked the Court for way outside the discovery period, and
          I, a couple of weeks later, responded with my time and hours. So there’s no surprise
          or prejudice on attorney’s fees.


See id. 193.6(a)(2) (making exception if evidence’s introduction will not unfairly surprise or

prejudice). In other words, the information was not provided in such a way that opposing counsel

would know or should know to object that the attorney was testifying. See Banda, 955 S.W.2d

at 272.

                 Regardless, even if we were to agree with Strnad and accept his counsel’s statements

in the hearing as sworn testimony, his counsel said nothing that would constitute evidence of the

reasonableness or necessity of the awarded attorney fees. As discussed above, he merely explained

that his client should be able to offer expert evidence despite not having timely supplemented his

discovery because that evidence would not be a surprise and would not prejudice appellants. As part

of that explanation, he stated that his and opposing counsel’s fees were comparable, but opposing

counsel’s fees were not admitted in evidence either, so no comparison is possible and, further, there

                                                  15
was no evidence as to the reasonableness and necessity of those fees. He explained why an award

of attorney fees would be equitable and just in this case, but that issue is a legal question. See

Bocquet, 972 S.W.2d at 21. He also affirmed that one of the proffers he made was true and correct,

but even presuming this was meant to swear to the truth and correctness of the allegations in both

the motion and supplemental motion for attorney fees, the effect would be merely to verify the

motions; it would not constitute competent evidence. See, e.g., Olsen v. Commission for Lawyer

Discipline, 347 S.W.3d 876, 886 (Tex. App.—Dallas 2011, pet. denied) (party may not support its

response to motion for summary judgment with affidavit attempting to verify truth and correctness

of all allegations and facts, such document amounts to nothing more than verified responsive

pleading, which is not competent summary-judgment evidence). Finally, although Strnad’s counsel

asked the trial court “to award us attorney’s fees [as] supported in the proffer in the amount of

$20,750, which is the 62 hours . . . [plus] another 21 hours,” he did not state that the amount or the

hourly rate to achieve that amount was reasonable or necessary. In sum, even accepting his counsel’s

argument as sworn testimony, there is no evidence in the record to support the reasonableness and

necessity of the attorney-fee award.

               We are aware that the supreme court has, on at least two occasions, directed this

Court and another appellate court to consider evidence that was not formally admitted into the

record at the trial court. See Sanchez v. Bexar Cnty. Sheriff’s Dep’t, 134 S.W.3d 202 (Tex. 2004)

(per curiam) (holding that administrative record was constructively admitted because “both parties

and the district court relied on the record as admitted throughout the proceedings”); Texas Health

Enters., Inc. v. Texas Dep’t of Human Servs., 949 S.W.2d 313, 314 (Tex. 1997) (per curiam)



                                                 16
(“[E]vidence that is not objected to and that the trial court and parties treat as admitted is, for all

practical purposes, admitted.”). After careful review of these cases and the cases collected in Texas

Health,9 we are not persuaded that the circumstances of this case warrant the same treatment.

               First, both Sanchez and Texas Health were administrative appeals subject to

statutory directives that the underlying agency record be admitted into evidence as an exhibit. See

Sanchez, 134 S.W.3d at 203 (noting Local Government Code section 158.0122(c)’s requirement

that commission record be admitted into evidence); Texas Health, 949 S.W.3d at 314 (noting

Government Code section 2001.175(d)’s requirement that agency record be admitted into evidence

and subsection (e)’s requirement that trial court base its decision on agency record). But more

relevant here, given that this is not an administrative appeal, is the supreme court’s emphasis on the

parties’ and trial court’s assumption in both those cases that the evidence in question had been

admitted. See Sanchez, 134 S.W.3d at 203 (noting “the parties and the district court relied on the

administrative record throughout the review proceeding”); Texas Health, 949 S.W.2d at 314 (noting

“the parties and the district court treated [the agency record] as admitted evidence”). That same

assumption was not present here. To the contrary, appellants objected to the introduction of any

expert-witness evidence on attorney fees for failure to timely supplement and had filed a motion

to strike Strnad’s motion for attorney fees on those same grounds. They argued that at the hearing,

but did not obtain a ruling on either position because the trial court took the matter under advisement


       9
          In Texas Health Enterprises, Inc. v. Texas Department of Human Services, the
supreme court lists several appellate cases as support for its holding. See 949 S.W.2d 313
(Tex. 1997) (per curiam). Like Texas Health, in those cases all three parties relied on or acted as if
the evidence had been admitted into evidence or did not object when the other party and the court
treated the evidence as being admitted.

                                                  17
at the end of the hearing. Likewise, although Strnad’s counsel urged the trial court to overrule

appellants’ objection and allow the evidence, his argument indicated an understanding that the issue

was pending before the court:


              Beginning on Page 5 of my supplemental brief and proffer, I quote at length
       Rule 193.6. It says, Exclusion of evidence and exception. A party who fails to make,
       amend, supplement a discovery response in a timely manner may not introduce into
       evidence the material information that was not timely disclosed or offer testimony of
       a witness.

       ....

               Now, you may not introduce it unless the Court finds one of two things: there
       was good cause—and I don’t even think we need to reach that issue, but you get to
       the “or,” in the disjunctive, or the Court finds the failure to timely make or amend or
       supplement the discovery response will not unfairly surprise or unfairly prejudice the
       other parties.


(Emphases added.) Further, although there are no special words required to do so, Strnad’s counsel

never asked the court on the record to admit the documents into evidence and none of the parties

acted as if the documents had been admitted. See Sanchez, 134 S.W.3d at 203; Texas Health,

949 S.W.2d at 314; see also Guetersloh v. C.I.T. Corp., 451 S.W.2d 759, 760 (Tex. Civ.

App.—Amarillo 1970, writ ref’d n.r.e.) (holding that word “offer” is not required to place document

into evidence; if offering party’s actions create a question as to whether document is in evidence,

opposing party should object and obtain ruling). Accordingly, because there is no indication that the

parties relied on or treated as admitted the attorney-fees evidence at issue here, the evidence was not

constructively admitted for purposes of our review. See Sanchez, 134 S.W.3d at 203; Texas Health,

949 S.W.2d at 314.



                                                  18
               Because there is no evidence in the record to support the reasonableness and necessity

of the attorney-fees award, it was an abuse of discretion for the trial court to award the fees. See

Bocquet, 972 S.W.2d at 21; see also Garcia v. Gomez, 319 S.W.3d 638, 646 (Tex. 2010) (Jefferson,

C.J., dissenting) (collecting cases holding that award of attorney fees must be supported by

evidence). Accordingly, we affirm appellants’ second issue.


                                         CONCLUSION

               Having affirmed appellants’ second issue, we reverse the district court’s award

of attorney fees and render judgment that Strnad taking nothing on his claim for attorney fees. See

Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 166 (Tex. 2012) (rendering take-nothing judgment

where no evidence to support claim). We affirm the remainder of the judgment.



                                              __________________________________________
                                              Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Puryear and Goodwin

Affirmed in part; Reversed and Rendered in part on Rehearing

Filed: November 6, 2015




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