
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-02-00026-CV


Tom Kilpatrick and Janice Kilpatrick, Appellants

v.

Curtis Tomlin and Patsy Tomlin, Appellees





FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 176,055-B, HONORABLE BOBBY L. CUMMINGS, JUDGE PRESIDING




	In one point of error, appellants Tom and Janice Kilpatrick contend that the district
court erred in granting appellees' request for attorney's fees.  Because we cannot say that the district
court abused its discretion in awarding the Tomlins' attorney's fees, we overrule the Kilpatricks'
point of error and affirm the district court's judgment.

BACKGROUND
	This appeal arises from our remand in Kilpatrick v. Tomlin, No. 03-00-00419-CV
(Tex. App.--Austin Mar. 15, 2001, no pet.) (not designated for publication), 2001 Tex. App. LEXIS
1703, at *1, in which Curtis and Patsy Tomlin sued their neighbors, Tom and Janice Kilpatrick,
seeking monetary damages and equitable relief for the unlawful diversion of surface water.  The
Tomlins also requested attorney's fees.  Id.  This Court affirmed the district court's judgment with
respect to an injunction requiring the Kilpatricks to construct a drainage ditch and a detention pond
on their property, and the award of expenses, but we reversed and rendered that portion of the
judgment awarding actual and exemplary damages.  Id. at *21.  Because there was no evidence in
the record supporting the amount of attorney's fees awarded, we also reversed and remanded that
portion of the judgment regarding attorney's fees.  Id.  On remand, the district court, after an
evidentiary hearing, ordered the Kilpatricks to pay $17,492.01 in attorney's fees plus interest to the
Tomlins.  The Kilpatricks appeal from that order.

DISCUSSION
	The Kilpatricks contend that the trial court abused its discretion in awarding the
Tomlins almost $17,500 in attorney's fees.  Specifically, they claim that the amount is unwarranted
and excessive because the Tomlins did not prevail on all issues in the lawsuit.  We interpret this
contention as challenging the reasonableness and necessity of the attorney's fees.
	The trial court may award those fees that are "reasonable and necessary" for the
prosecution of a case.  See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1997); Bocquet v.
Herring, 972 S.W.2d 19, 21 (Tex. 1998).  Attorney's fees are not recoverable in an action unless
provided for by statute or by contract between the parties.  First Nat'l Bank v. Anderson Ford-Lincoln-Mercury, Inc., 704 S.W.2d 83, 85 (Tex. App.--Dallas 1985, writ ref'd n.r.e.).  The award
of attorney's fees in this case is based on the Uniform Declaratory Judgments Act, which provides
that a "court may award costs and reasonable and necessary attorney's fees as are equitable and just." 
Tex. Civ. Prac. & Rem. Code Ann. § 37.009.
	The amount of an attorney's fees award rests in the sound discretion of the trial court,
and its judgment will not be reversed on appeal absent a clear showing that it abused that discretion. 
Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990).  The test for abuse of
discretion is whether the court acted without reference to any guiding rules and principles.  See
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
	At the evidentiary hearing, the Tomlins' trial counsel, Randy Harrell, testified
generally that he was an attorney and had practiced law in Temple for more than seven years. 
Regarding this case specifically, he testified that he handled the case from its inception through trial. 
He also stated that he, along with the attorney handling the attorney's fees hearing, assisted in the
original appeal.  Harrell further testified to the time and labor required for trial and appeal of the
cause and the reasonableness of the attorney's fees charged, explaining that he was familiar with
reasonable and necessary attorney's fees in Bell County and the customary fees charged in Bell
County for similar legal services.  Although he testified to the number of hours worked and fees
charged as recorded in his firm's billing records, he did not introduce into evidence any of those
records.  The Kilpatricks' attorney cross-examined Harrell concerning the reasonableness of the fees
in light of this Court's reversal of the damages award.
	In a declaratory judgment action, there is no requirement that a party prevail to receive
an award of attorney's fees.  See Tex. Civ. Prac. & Rem. Code Ann. § 37.009; Barshop v. Medina
County Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996).  Rather, the
award of attorney's fees in a declaratory judgment action is solely within the trial court's discretion. 
Barshop, 925 S.W.2d at 637.  The Kilpatricks did not challenge Harrell's hourly rate or the services
provided.  Based on Harrell's testimony, we hold that the trial court did not abuse its discretion in
awarding attorney's fees in the amount of $17,192.01 plus interest. (1)  The Kilpatricks' point of error
is overruled.

CONCLUSION
	Having overruled the Kilpatricks' point of error, we reform the judgment to reflect
an award of $17,192.01, and, as reformed, we affirm the trial court's judgment.


  
					Jan P. Patterson, Justice
Before Justices Kidd, Patterson and Puryear
Reformed and, as Reformed, Affirmed
Filed:   June 27, 2002
Do Not Publish
1.   The trial court's judgment reflects an award of attorney's fees and costs of $17,492.01;
however, as appellees points out, the correct amount should be for $17,192.01.
