                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00399-CV


CONTINENTAL CASUALTY                                             APPELLANT
INSURANCE COMPANY

                                      V.

MARY M. LAVENDER                                                  APPELLEE


                                   ----------

         FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

                                   ----------

                       MEMORANDUM OPINION1
                                   ----------

                 I. INTRODUCTION AND FACTUAL BACKGROUND

     Appellee Mary M. Lavender became eligible for workers’ compensation

death benefits when her husband suffered a compensable injury that resulted in

his death while in the course and scope of his employment.          Appellant

Continental Casualty Insurance Company, after paying the death benefits for


     1
      See Tex. R. App. P. 47.4.
several years, filed proceedings with the worker’s compensation commission

claiming that Mary had become ineligible to continue to receive death benefits

because she had remarried by virtue of a common law marriage to Michael

Brucia. Both the Contested Case Hearing Officer’s Decision and the subsequent

decision of the Appeals Panel of the Workers’ Compensation Commission were

adverse to Appellant. Appellant then sought judicial review, filing an original

petition in district court. Mary filed a no-evidence motion for summary judgment

in the district court, claiming that no evidence existed that she had agreed to be

presently married to Brucia or that the couple held themselves out as husband

and wife.    The trial court granted Mary’s no-evidence motion for summary

judgment and awarded attorneys’ fees to her.2 Appellant perfected this appeal.

      Appellant raises eight points on appeal, three challenging the no-evidence

summary judgment granted for Mary and five challenging the trial court’s award

of attorneys’ fees to Mary. For the reasons set forth below, we will affirm the trial

court’s judgment.

          II. NO EVIDENCE OF FIRST ELEMENT OF COMMON LAW MARRIAGE

      In Appellant’s first three points, it asserts that it produced summary

judgment evidence raising a genuine issue of material fact on each of the three




      2
        See Tex. Lab. Code Ann. § 408.221(c) (West 2006) (making insurance
carrier seeking judicial review liable for claimant’s attorney’s fees when claimant
prevails on issue for which carrier sought judicial review).


                                         2
elements of common law marriage.3 Proof of a common law marriage may be

established by evidence that (1) the man and woman agree to be married, (2)

they live together as husband and wife, and (3) they represent themselves to

others as married. See Tex. Fam. Code Ann. § 2.401(a)(2) (West 2006).

      Concerning the first element, a common law marriage cannot be founded

on an agreement to be married in the future. See Walter v. Walter, 433 S.W.2d

183, 191 (Tex. Civ. App.––Houston [1st Dist.] 1968, writ ref’d n.r.e.). The parties

must intend to have a present, immediate, and permanent marital relationship.

Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.––Houston [1st Dist.] 1991,

writ denied). Mary and Bruscia both denied the existence of a present intent to

be married. Cf., e.g., Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App.—Houston

[1st Dist.] 2001, pet. denied) (holding that testimony of at least one party to an

alleged common law marriage that couple presently intended to be married

constituted more than a scintilla of evidence on first element of common law

marriage). In support of its first point and as evidence of Mary’s and Brucia’s

intent to be presently married, Appellant points only to the fact that Brucia gave

Mary an engagement ring, the fact that Mary and Brucia agreed to be married at

some date in the future, and the fact that Mary and Brucia cohabitated. We hold

that as a matter of law none these facts nor any other summary judgment


      3
        Mary’s no-evidence motion for summary judgment challenged only the
first and third elements of common law marriage. See Tex. R. Civ. P. 166a(i)
(―The motion must state the elements as to which there is no evidence.‖).


                                        3
evidence in the record constitutes more than a scintilla of evidence of an intent

by Mary and Brucia to be presently married. See Mills v. Mest, 94 S.W.3d 72,

73–74 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (holding evidence

legally insufficient to support first element of common law marriage).

      Because no evidence exists on the first element of a common law

marriage, the trial court did not err by granting Mary’s no-evidence motion for

summary judgment. See Tex. R. Civ. P. 166a(i) (providing that trial court must

grant a no-evidence summary judgment if the non-movant does not produce

evidence raising a fact issue on a challenged element). We overrule Appellant’s

first point. Having affirmed the trial court’s no-evidence summary judgment on

this basis, we need not address Appellant’s second and third points claiming that

more than a scintilla of evidence exists on the other two elements of common law

marriage. See Hanson v. Greystar Dev. & Constr. L.P., 317 S.W.3d 850, 855

(Tex. App.––Fort Worth 2010, pet. denied).

                     III. ATTORNEYS’ FEE AWARD IS PROPER

      In its remaining five points, Appellant claims that the trial court’s award of

$24,400 in attorneys’ fees to Mary’s attorneys was erroneous because the no-

evidence summary judgment was improper; the hourly rates for the fees awarded

to Mary’s attorneys exceeded $150 per hour, which Appellant alleges is a

statutory cap; the hourly rates for the fees awarded to Mary’s attorneys were not

reasonable; the judgment ordered the attorneys’ fees paid directly to Mary’s




                                         4
attorneys even though they are not parties to the lawsuit; and the fee award

included time spent by Mary’s attorneys in pursuit of their fees.

         Because we have held that the trial court correctly granted Mary’s no-

evidence summary judgment on the ground that no evidence exists on the first

element of common law marriage––that Mary and Brucia agreed to be presently

married––the trial court’s no-evidence summary judgment was not erroneous so

that an award of attorneys’ fees was precluded. We overrule Appellant’s fourth

point.

         The trial court conducted an evidentiary hearing on Mary’s request for

attorneys’ fees. The trial court heard testimony from Mary’s attorneys, examined

Mary’s attorneys’ billing records that were admitted into evidence at the hearing,

and examined a twelve-page affidavit from Mary’s counsel that was admitted into

evidence at the hearing. The record reflects that Mary’s attorneys ultimately

proved up attorneys’ fees in the amount of $53,075. This fee amount was based

on 6.7 hours at the rate of $400 per hour for Mr. Barbknecht as senior attorney

on the case, 164.6 hours at the rate of $275 per hour for associate Laci Dreher,

and 34.2 hours at the rate of $150 per hour for paralegals.               Following the

evidentiary hearing on attorneys’ fees, the trial court sent the parties a letter

ruling explaining that it was going to award $24,400 in attorneys’ fees and setting

forth how the trial court had reached that number.

         Ultimately, the trial court’s judgment provided, in pertinent part,




                                             5
      The Court ORDERS and DECREES that Defendant Mary Lavender
      recover reasonable and necessary attorney’s fees in the amount of
      $24,400.00, adjudged against Plaintiff, Continental Casualty
      Insurance Company, against whom execution may issue for
      collection of said costs. Therefore, Continental Casualty Insurance
      Company is ordered to pay attorney’s fees in the amount of
      $24,400.00, in a lump sum, plus five percent (5%) interest, within
      fifteen days (15) of the date this Judgment is signed, to The
      Barbknecht Firm, P.C., as the prevailing party may recover said
      attorney’s fees from Plaintiff, Continental Casualty Insurance
      Company, against whom execution may issue.

      Under the Texas Workers’ Compensation Act, an insurance carrier that

seeks judicial review of a final decision of the appeals panel regarding eligibility

for death benefits is liable for reasonable and necessary attorney’s fees incurred

by the claimant as a result of the insurance carrier’s appeal if the claimant

prevails on an issue on which judicial review is sought by the insurance carrier.

See Tex. Lab. Code Ann. § 408.221(c). Although the commissioner by rule sets

guidelines for maximum attorney’s fees for specific services, attorney’s fees that

an insurance carrier is liable for when it seeks judicial review of a final decision of

the appeals panel regarding eligibility for death benefits and when the claimant

prevails on an issue on which judicial review is sought are not subject to the rules

adopted by the commissioner.          See id. § 408.221(f) (providing that ―[t]he

commissioner by rule shall provide guidelines for maximum attorney’s fees for

specific services in accordance with this section‖); § 408.221(c) (providing that

―[a]n award of attorney’s fees under this subsection is not subject to

commissioner rules adopted under Subsection (f)‖).              The commissioner’s

guidelines for maximum attorney’s fees are applicable only to legal fees


                                          6
generated by proceedings before the commission.          28 Tex. Admin. Code

§ 152.4(a) (2011) (Tex. Dep’t of Ins., Div. of Workers’ Comp., Guidelines for

Legal Services Provided to Claimants and Carriers) (―The guidelines outlined in

this rule shall be considered by the commission along with the factors, and

maximum fee limitations . . . .‖) (emphasis added).

      Appellant’s fifth point argues that the trial court erred by awarding Mary’s

attorneys fees based on hourly rates in excess of $150 because the rules

adopted by the commissioner pursuant to section 408.221(f) of the Texas Labor

Code cap the hourly rate at $150. See id. § 152.4(d)(1). Contrary to Appellant’s

position, the hourly rate fee caps set by the commisisoner are expressly not

applicable to an award of attorney’s fees made pursuant to section 408.221,

subsection (c) of the Texas Labor Code. See Tex. Lab. Code Ann. § 408.221(c)

(providing that an award of attorney’s fees under subsection (c) is not subject to

commissioner rules adopted under subsection (f)).       It is undisputed that the

award of attorneys’ fees to Mary was made pursuant to labor code section

408.221(c) because Appellant sought judicial review of a final decision of the

appeals panel regarding Mary’s eligibility for death benefits and Mary prevailed

on the issue on which judicial review was sought. Because Mary’s attorneys’

fees are not capped by the rules adopted by the commissioner, we overrule

Appellant’s fifth point.

      In its sixth point, Appellant argues that the hourly rates for the fees

awarded to Mary’s attorneys were not reasonable hourly rates. Appellant bases


                                        7
this argument on the hourly rate fee computation that the trial court utilized in its

letter to the parties. Letter rulings, however, do not constitute formal findings of

fact. Cherokee Water Co. v. Gregg Cnty. Appraisal Dist., 801 S.W.2d 872, 878

(Tex. 1990); Castillo v. August, 248 S.W.3d 874, 880 (Tex. App.––El Paso 2008,

no pet.). Because the trial court’s letter ruling in this case does not constitute

formal findings of fact, no finding of fact exists on what hourly rate the trial court

utilized in determining that reasonable attorneys’ fees in this case totaled

$24,400. See Cherokee Water Co., 801 S.W.2d at 878. When a trial court

makes no findings of fact or conclusions of law, we must assume it made all

findings in support of its judgment. Pharo v. Chambers Cnty., 922 S.W.2d 945,

948 (Tex. 1996).

      Generally, the amount of money awarded as attorney’s fees rests within

the sound discretion of the court. Ragsdale v. Progressive Voters League, 801

S.W.2d 880, 881 (Tex. 1990).         However, to determine whether the award

constituted an abuse of discretion, the reviewing court must first determine

whether the trial court had sufficient evidence before it upon which it could

exercise its discretion.   See Alford v. Johnston, 224 S.W.3d 291, 298 (Tex.

App.—El Paso 2005, pet. denied). In reviewing the sufficiency of the evidence

supporting an award of attorney’s fees, we consider the following factors: (1) the

time and labor required, the novelty and difficulty of the questions involved, and

the skill required to perform the legal service properly; (2) the likelihood that the

acceptance of the particular employment will preclude other employment; (3) the


                                          8
fee customarily charged in the locality for similar legal services; (4) the amount

involved and the results obtained; (5) the time limitations imposed by the client or

by the circumstances; (6) the nature and length of the professional relationship

with the client; (7) the experience, reputation, and ability of the lawyer or lawyers

performing the services; and (8) whether the fee is fixed or contingent on results

obtained or uncertainty of collection before the legal services have been

rendered. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812,

818 (Tex. 1997). No requirement exists that evidence be introduced on of each

of the Andersen factors.     See Franco v. Lopez, 307 S.W.3d 551, 555 (Tex.

App.—Dallas 2010, no pet.).

      Through billing statements, affidavits, and live testimony, Mary’s attorneys

proved up $53,075 in reasonable and necessary attorneys’ fees (6.7 hours by

Mr. Barbknecht at $400 per hour, 164.6 hours by Ms. Dreher at $275 per hour,

and 34.2 hours by paralegals at $150 per hour) for work performed from October

2008 when Appellant filed its original petition for judicial review until July 30,

2010, when the trial court signed the final judgment. The affidavit presented to

the trial court details the work performed by Mary’s attorneys and explains why it

was necessary based on the actions taken by Appellant in furtherance of

Appellant’s claims.    The trial court awarded attorneys’ fees in an amount

constituting less than half of the attorneys’ fees proved up by Mary’s attorneys—

$24,400. Based on the evidence presented to the trial court, including evidence

concerning the Andersen factors; the absence of findings of fact on the hourly


                                         9
rate utilized by the trial court to reach its award of $24,400; and the assumption

that the trial court made all findings in support of its award of $24,400; we cannot

say that no evidence exists supporting the trial court’s award of $24,400 in

attorneys’ fees to Mary’s attorneys or that the trial court abused its discretion by

awarding this amount. We overrule Appellant’s sixth point.

      In its seventh point, Appellant argues that the trial court erred ―because it

awarded the fees directly to The Barbknecht Firm as the prevailing party, when

The Barbknecht Firm was not a party to the DWC decision and is not a party to

this lawsuit.‖ As set forth and quoted above, however, the trial court’s judgment

awards reasonable and necessary attorneys’ fees to Mary Lavender and

adjudged them against Appellant. The judgment then further orders that the

attorneys’ fee award be paid directly to The Barbknecht Firm. Thus, the plain

language of the judgment awards attorneys’ fees to Mary as the prevailing party,

not to The Barbknecht Firm as the prevailing party, and makes the attorneys’

fees awarded to Mary as the prevailing party payable directly to her attorneys,

The Barbkencht Firm. We overrule Appellant’s seventh point.

      In its eighth point, Appellant argues that the trial court erred because it

awarded attorneys’ fees to Mary’s attorneys for actions performed in pursuit of

the attorneys’ fees.   Because the trial court did not make findings of fact or

conclusions of law concerning its attorneys’ fee award, to the extent, if any, that

attorneys’ fees incurred in pursuit of a statutory right to attorneys’ fees are not

recoverable, and because the trial court did not award the amount of attorneys’


                                        10
fees requested and proved up by Mary’s attorneys but instead awarded less than

half of that amount, we presume that the trial court did not include actions taken

in pursuit of attorneys’ fees in its $24,400 fee award.     See, e.g., Worford v.

Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (holding that in absence of findings of

fact and conclusions of law, appellate court must presume all facts in support of

the judgment and must uphold judgment on any legal theory finding support in

the record). Accordingly, we overrule Appellant’s eighth point.

                                   IV. CONCLUSION

      Having overruled Appellant’s first, fourth, fifth, sixth, seventh, and eighth

points and having determined that we need not address Appellant’s second and

third points, we affirm the trial court’s judgment.



                                                      SUE WALKER
                                                      JUSTICE

PANEL: WALKER and MCCOY, JJ.; and WILLIAM BRIGHAM (Senior Justice,
Retired, Sitting by Assignment).

DELIVERED: June 9, 2011




                                          11
