
 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-07-00376-CV


Elizabeth Louise Handley, Appellant

v.

Marian C. Bloss, Appellee




FROM THE COUNTY COURT AT LAW NO. 1 OF BURNET COUNTY
NO. C3206, HONORABLE W. R. SAVAGE, JUDGE PRESIDING



C O N C U R R I N G   A N D   D I S S E N T I N G   O P I N I O N

		Marian Bloss, an attorney, sued her former client, Elizabeth Handley, to recover
unpaid fees.  Bloss filed a traditional motion for summary judgment, see Tex. R. Civ. P. 166a(c),
which the trial court granted after Handley failed to file a response.  On appeal, Handley argues that
(1) Bloss's summary judgment evidence raises a fact question as to the fees Handley actually owed
and (2) a portion of the fees that Bloss seeks to recover constitutes an "unenforceable penalty." 
Bloss argues that we should affirm the summary judgment and award her damages because
Handley's appeal is frivolous.  I concur with the majority in affirming the summary judgment, but
I respectfully dissent on the issue of damages because I believe this appeal is frivolous. 
 
FACTUAL AND PROCEDURAL BACKGROUND
		Bloss represented Handley in a divorce proceeding.  Handley contractually agreed to
pay Bloss $200 per hour for her services.  As Handley's bills came due, Bloss apparently offered to
discount them a total of $3200.  After Handley failed to pay her bills, however, Bloss sent her a letter
that stated:  "If a check is not received, this office shall be forced to file suit against you for the
amount owed--minus all previous discounts allowed, interest at the maximum rate allowed by law,
court costs and attorney fees." (Emphasis in original.)  Handley did not pay her bills, and Bloss sued
for everything she was owed, including the amounts she had previously offered to discount.
		Bloss eventually filed a motion for summary judgment.  The motion included an
affidavit by Bloss that detailed the fees she was owed and averred that the fees were reasonable and
necessary.  The affidavit attached the following exhibits:  (1) Handley's "client information" form;
(2) a "Fee Schedule and Fee Agreement with Client" form, signed by Handley, which detailed
Bloss's billing rate ($200 per hour) as well as all other expenses for which Handley was responsible
(e.g., copying costs, court costs); (3) copies of checks that Handley remitted to Bloss; (4) copies of
bills dated August 23, September 4, October 13, and October 28, 2006 that show the amount of fees
Handley owed Bloss for each interval; (5) a letter from Bloss to Handley dated October 28, 2006,
styled a "formal demand," that stated that if Handley did not pay Bloss her outstanding debt of
$6,138.23 within thirty days, Bloss would file suit for that amount plus the $3200 in discounts
previously offered (for a total of $9,338.23); and (6) a letter from Bloss to Handley dated December
18, 2006, again styled a "formal demand," that stated that Bloss would file suit if Handley did not
pay the entire $9,338.23 within thirty days.
		Handley did not file a response to Bloss's summary judgment motion.  The trial court
granted the motion and awarded Bloss the $9,338.23 she was owed under the parties' contract, plus
costs, attorney's fees, and pre- and post-judgment interest.
		On appeal, Handley argues that a fact question exists as to whether she owes Bloss
the previously discounted $3200.  She also argues that requiring her to pay the $3200 constitutes an
"unenforceable penalty."  Bloss not only denies these claims but also seeks damages for having to
contest them, characterizing them as frivolous.  See Tex. R. App. P. 45 (appellate court may award
damages for frivolous appeals).
 
STANDARD OF REVIEW
 A "traditional" motion for summary judgment is properly granted when the movant
establishes that there are no genuine issues of material fact and that it is entitled to judgment as a
matter of law.  Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471
(Tex. 1991); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.--Austin 2000, no pet.).  In
reviewing a grant of summary judgment, we take as true evidence favorable to the nonmovant,
making every reasonable inference and resolving all doubts in the nonmovant's favor.  Centeq
Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). 

DISCUSSION
Summary Judgment
 Handley raises two points of error on appeal.  First, she argues that because Bloss
offered discounts totaling $3200 as Handley's first few bills came due, a fact issue exists as to
whether Bloss had the right to revoke that offer.  Second, Handley argues that Bloss's revocation of
the $3200 discount constitutes an "unenforceable penalty."
		Handley did not raise these arguments in the trial court, so she cannot raise them on
appeal.  See Tex. R. Civ. P. 166a(c) ("Issues not expressly presented to the trial court by written
motion, answer or other response shall not be considered on appeal as grounds for reversal [of
summary judgment]."); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678
(Tex. 1979) (party appealing from summary judgment may not raise grounds for reversal that it did
not raise in writing in trial court).  Nevertheless, I will briefly explain why these arguments would
fail even if they had not been waived.
		Regarding Handley's first argument--namely, that a fact question exists as to whether
Bloss had the right to revoke her offer of a $3200 discount--it is clear that the parties' fee agreement
did not require discounts for timely payment. (1)  Rather, under the fee agreement's plain terms,
Handley owed Bloss $9,338.23 for her services.  Handley appears to argue that because Bloss
initially agreed to accept $6,138.23 for her services, a fact question exists as to whether $6,138.23
or $9,338.23 was the reasonable rate for Bloss's services.  This argument fails for two reasons.  First,
Handley agreed to a contract rate of $9,338.23 and has not alleged that she was misled into doing
so.  See In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005) (per curiam) (absent fraud,
misrepresentation, or deceit, parties are bound by the terms of the contracts they sign).  Second,
Bloss submitted an affidavit that stated $9,338.23 was a reasonable rate for her services.  That
affidavit was sufficient to support summary judgment because Handley failed to controvert it.  See
Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (West 2008) (affidavit by service provider stating that
service charge was reasonable is sufficient to support judgment if not contradicted by
counteraffidavit); see also In the Estate of Tyner, 292 S.W.3d 179, 184 (Tex. App.--Tyler 2009,
no pet.) (proper affidavit by attorney, if uncontroverted, is sufficient to establish reasonableness of
attorney's fees).  That being the case, the mere fact that Bloss offered a discount does not suggest
that her rate may in fact have been unreasonable.  Put another way, the fact that an attorney offered
to discount her fees is irrelevant to the question of whether those fees were reasonable in the first
place.  The only thing that could suggest Bloss's fees were unreasonable would be evidence directly
demonstrating as much.  See Karen Corp. v. Burlington N. & Santa Fe Ry. Co., 107 S.W.3d 118, 126
(Tex. App.--Fort Worth 2003, pet. denied) (affidavit establishing reasonableness of attorney's fees
must be controverted with facts demonstrating that fees were unreasonable).  Handley offered no
such evidence below.
		Handley's second argument--namely, that Bloss's revocation of the $3200 discount
constitutes an "unenforceable penalty"--fails because requiring someone to pay an agreed-upon
contract rate is not a "penalty."  See Phillips v. Phillips, 820 S.W.2d 785, 788 (Tex. 1991) (a penalty
is a demand for unreasonably large liquidated damages).
		I reiterate that even though I have explained why Handley's appellate arguments
would fail on their merits, those arguments are in fact waived because Handley did not raise them
below.  See Clear Creek Basin Auth., 589 S.W.2d at 678 (party appealing from summary judgment
may not raise grounds for reversal that it did not raise in trial court).  When a party fails to oppose
a summary judgment motion, the only evidentiary argument it can legitimately raise on appeal is that
the movant's summary judgment evidence was legally insufficient.  See id. at 678-79.  Handley does
not make such an argument here.  Indeed, the only part of her brief that could conceivably be
relevant to such an argument is the statement that "[a]ppellee's summary judgment proof is
inconsistent."  Even giving Handley every benefit of the doubt, however, I cannot construe this
isolated statement as an argument that Bloss's summary judgment evidence was legally insufficient
because it was inconsistent.  First, Handley's brief does not even mention the concept of legal
insufficiency.  Second, Handley does not cite any authority that suggests inconsistent evidence is
legally insufficient to support summary judgment.  Third, even if Handley did cite such authority,
Bloss's evidence was not in fact inconsistent.  Rather, Bloss's evidence established that Bloss sought
fees consistent with the parties' fee agreement.  That the evidence also suggested the possibility of
a discount for Handley does not, absent more, bear on the issue of whether the fees proven and
awarded were reasonable and necessary.     

Damages
		Bloss has moved for damages equal to the $4,648.95 in attorney's fees she incurred
in responding to Handley's appeal.  See Tex. R. App. P. 45 (appellate court may award damages for
frivolous appeal).  Bloss argues that taken together, the following six facts show that Handley's
appeal was frivolous:  (1) Handley failed to file a response to Bloss's motion for damages;
(2) Handley did not raise her points of error in the trial court; (3) Handley's appellate brief contains
little substantive argument and few citations to authority or the record, see Tex. R. App. P. 38.1;
(4) Handley's brief does not comply with the rules of appellate briefing, see Tex. R. App. P. 9.4;
(5) Handley has delayed pursuing her appeal, twice missing filing deadlines and requesting
extensions; and (6) Handley had no reasonable basis to expect to prevail on appeal. 
		I agree that Handley's appeal is frivolous.  An appeal is frivolous to the point that
damages are warranted "if, at the time asserted, the advocate had no reasonable grounds to believe
judgment would be reversed."  Njuku v. Middleton, 20 S.W.3d 176, 178 (Tex. App.--Dallas 2000,
pet. denied).  Handley's points of error are patently meritless, but even if they were not, Handley's
attorney had no reasonable basis to believe that they would succeed on appeal because Handley did
not raise them in the trial court.  The law is well-settled that failure to raise issues in the trial court
waives them on appeal.  See Tex. R. Civ. P. 166a(c); Clear Creek Basin Auth., 589 S.W.2d at 678. (2) 
Furthermore, Handley filed no response to Bloss's motion for damages and eventually filed an
appellate brief that was cursory and superficial.  As Bloss argues, these facts suggest that Handley's
appeal represents an attempt to delay payment rather than a good-faith belief that the trial court erred. 
See Compass Exploration, Inc. v. B-E Drilling Co., 60 S.W.3d 273, 280 (Tex. App.--Waco 2001,
no pet.) (facts supporting award of damages include (1) failure to respond to motion for damages and
(2) filing of cursory brief).
		My fellow panelists believe we should not grant Bloss's motion for damages because
Handley made a colorable argument on appeal--namely, that Bloss's summary judgment evidence
was legally insufficient because it was inconsistent.  I disagree with them because, as discussed
above, I do not think that Handley's brief, fairly construed, actually makes that argument.  Handley's
brief does not mention the concept of legal insufficiency or cite any authority that suggests
inconsistent evidence is legally insufficient to support summary judgment.  And even if the brief did
cite such authority, Bloss's evidence was not in fact inconsistent (as my fellow panelists
apparently agree).  		
		An appellant must have notice and an opportunity to respond before we award
damages.  See Tex. R. App. P. 45.  Here, Bloss filed a motion for damages and reiterated her request
for damages in her brief.  Handley had notice of both and declined to take advantage of her
opportunities to respond.  See Tex. R. App. P. 10.1 (party may file response to motion filed by
opponent); Tex. R. App. P. 38.3 (appellant may file reply brief to respond to any issue raised in
appellee's brief).  Thus, I would award Bloss $4,648.95 in damages, an amount equal to the
attorney's fees she incurred in opposing this appeal.  See Smith v. Brown, 51 S.W.3d 376, 382
(Tex. App.--Houston [1st Dist.] 2001, pet. denied) (using attorney's fees as measure of damage
award under Tex. R. App. P. 45).  I respectfully dissent from the majority's opinion insofar as it
refuses to award those damages.

						__________________________________________
						David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton;
    Joined in part by Justice Pemberton

Filed:   February 5, 2010
1.   Handley admits this fact; in her brief she states, "[t]he contract itself is silent on the
question of discounts."
2.   Again, the only evidentiary argument Handley could legitimately make on appeal is that
Bloss's summary judgment evidence was legally insufficient.  See City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).  As already stated, though, and as discussed
further below, I do not believe that Handley makes this argument.  

