Affirmed as Modified and Opinion filed and Majority and Dissenting
Opinions filed May 28, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00967-CV

                      ROSE GIPSON-JELKS, Appellant
                                       V.

                          MAE K. GIPSON, Appellee

                   On Appeal from the 269th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2012-48688


                  MAJORITY OPINION
      This case involves a dispute between two parties about the ownership of real
property. We must determine whether the evidence was legally sufficient to enable
the trial court to find that one party proved superior title from a common source,
whether an objection to the trial court’s ruling excluding evidence of mental
capacity and fraud was preserved for appellate review, and whether sufficient
evidence supported awarding $16,292.63 in reasonable attorney’s fees. We affirm
the judgment as modified.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       The appellee/plaintiff Mae K. Gipson and appellant/defendant Rose
Gipson-Jelks are sisters.    Mae and her mother, Beulah M. Gipson, jointly
purchased a home located on Hopper Road (hereinafter “The Hopper Property”) in
June 1974. Mae and Beulah each took a one-half interest in the home. Rose
moved into the home with Beulah in the fall of 2005 and resided with Beulah until
Beulah passed away in April 2010. After Beulah died, Rose remained on the
premises. Mae sought to evict Rose on the grounds that Mae was the sole owner of
the property because Beulah had deeded Beulah’s one-half interest in the property
to Mae in a general warranty deed in 2008. Rose took the position that the
warranty deed was invalid because Beulah lacked capacity to execute the deed, and
Rose refused to vacate the premises in spite of receiving several eviction notices
from Mae.

      Mae filed a petition in August 2012 in which she asserted she held title to
The Hopper Property and sought a judgment declaring that Mae is the sole owner
of The Hopper Property, and a writ of possession. Rose filed a general denial.
After a bench trial, the trial court signed findings of fact and conclusions of law
followed by a judgment declaring Mae the sole and exclusive owner of The
Hopper Property and granting her immediate and exclusive possession of this
property.     The trial court ordered Rose to vacate The Hopper Property
immediately.    The trial court awarded Mae attorney’s fees in the amount of
$16,292.63.

                               II. ISSUES AND ANALYSIS

   A. Sufficiency of the Evidence

      Construing Rose’s third issue liberally, Rose argues that the evidence is
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legally insufficient to prove Mae holds title to The Hopper Property.1 In particular,
Rose argues that Mae did not prove a certified copy of a deed showing a chain of
title emanating from and under a common source. To prove a common source,
Rose argues, Mae needed to place into evidence a certified copy of the 1974 deed
to Mae and Beulah.

       When reviewing the legal sufficiency of the evidence, we consider the
evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d
802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder
could and disregard contrary evidence unless a reasonable factfinder could not.
See id. at 827. We must determine whether the evidence at trial would enable
reasonable and fair-minded people to find the facts at issue. See id. The factfinder
is the only judge of witness credibility and the weight to give to testimony. See id.
at 819.
       A trespass-to-try-title action is the method for determining title to lands,
tenements, or other real property.           Tex. Prop. Code Ann. § 22.001(a) (West,
Westlaw through 2013 3d C.S.). It is the exclusive remedy by which to resolve
competing claims to real property. See Kennedy Con., Inc. v. Forman, 316 S.W.3d
129, 135 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Any suit involving a
dispute over the title to land is a trespass-to-try-title action, whatever its form and
regardless of whether legal or equitable relief is sought. Id. To recover in a
trespass-to-try-title action, the plaintiff must establish a prima facie right of title by
proving one of the following: (1) a regular chain of conveyances from the
sovereign, (2) a superior title out of a common source, (3) title by limitations, or

1
  We address Rose’s third issue first because success on that issue would entitle Rose to a
rendition of judgment in her favor rather than to a remand to the trial court. See Bradley’s Elec.,
Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999) (per curiam).

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(4) prior possession, which has not been abandoned. See Martin v. Amerman, 133
S.W.3d 262, 265 (Tex. 2004); Kennedy Con., Inc., 316 S.W.3d at 135.

      In this case, Mae and Rose both claimed an interest in The Hopper Property
from a common source. The common source is Beulah’s one-half interest in The
Hopper Property. When each party claiming title asserts that his respective title
derives from the same source, to establish a prima facie right of title, the plaintiff
need only demonstrate good title coming from that common source. See Rogers v.
Ricane Enterprises, Inc., 884 S.W.2d 763, 768 (Tex. 1994); Reiter v. Coastal
States Gas Producing Co., 382 S.W.2d 243, 253, 255 (Tex. 1964).

      Rose argues that Mae has not met her burden because Mae did not introduce
the 1974 deed granting ownership of The Hopper Property to Mae and Beulah.
But, Mae and Rose both agree that the 1974 deed granted a one-half interest in the
property to Mae and a one-half interest in the property to Beulah. Both parties
assert that they have a claim to The Hopper Property because they have a claim to
Beulah’s one-half interest in the property. Because Beulah’s one-half interest in
the property is the common-source of their competing claims, Mae needed to prove
only that she had a superior title to Beulah’s one-half interest. See Rogers, 884
S.W.2d at 768; Reiter, 382 S.W.2d at 253 & 255.

      The trial evidence contains a 2008, notarized general warranty deed
conveying Beulah’s one-half interest in The Hopper Property to Mae. In addition
to the warranty deed, Mae testified that her mother wanted to deed the property to
her. Mae’s granddaughter and the notary both testified that they were present
when Beulah signed the deed. Mae’s granddaughter stated that Beulah signed the
deed of her own free will.      We conclude that the record contains sufficient
evidence to enable a reasonable factfinder to determine that Mae had superior title
from a common source. See Orca Assets G.P. LLC v. Burlington Resources Oil,

                                          4
No. 13-13-00462, 2015 WL 233670, at *4 (Tex. App.—Corpus Christi Jan. 15,
2015, pet. filed) (mem. op.). We overrule Rose’s third issue. See Rogers, 884
S.W.2d at 768; Reiter, 382 S.W.2d at 253, 255; Orca Assets, 2015 WL 233670, at
*4.

      B. Attorney’s Fees

        In her second issue, Rose argues the trial court erred in awarding attorney’s
fees to Mae because (1) there is no statutory or contractual basis for the award, and
(2) there was no evidence that the attorney’s fees were reasonable.            As a
prerequisite to presenting a complaint for appellate review, a party generally must
have presented its complaint to the trial court by timely request, objection, or
motion with sufficient specificity to make the trial court aware of the complaint.
See Tex. R. App. P. 33.1(a); Dugas v. Dreyer, No. 14-96-00336-CV, 2004 WL
438498, at *3 (Tex. App.—Houston [14th Dist.] Mar. 11, 2004, no pet.) (mem.
op.). Complaints regarding alleged error in awarding attorney’s fees are subject to
this rule. See Dugas, 2004 WL 438498, at *3; Jimoh v. Nwogo, No. 1-13-00675-
CV, 2014 WL 7335158, at *4 (Tex. App.—Houston [1st Dist.] Dec. 23, 2014, no
pet.) (mem. op.). But, in a bench trial, a party may raise a complaint regarding the
sufficiency of the evidence to support attorney’s fees for the first time on appeal.
Jimoh, 2014 WL 7335158, at *4. An argument that there was no evidence during a
bench trial that attorney’s fees were reasonable is a sufficiency-of-the-evidence
complaint that may be raised for the first time on appeal. In re Q.D.T., No. 14-09-
00696, 2010 WL 4366125, at *9 (Tex. App.—Houston [14th Dist.] Nov. 4, 2010,
no pet.) (mem. op.).

        The trial court made a finding of fact that $16,292.63 was a reasonable
attorney’s fee and awarded Mae $16,292.63 in attorney’s fees.            Rose never
objected to the award of attorney’s fees in the trial court or in her motion for new

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trial. Rose did not preserve error in the trial court as to her complaint that there is
no statutory or contractual basis for the award. See Scally v. Scally, No. 14-09-
00344-CV, 2010 WL 3864924, at *2 (Tex. App.—Houston [14th Dist.] Oct. 5,
2010, no pet.) (mem. op.). Rose may raise the argument that there is no evidence
supporting a determination that the award of attorney’s fees is reasonable for the
first time on appeal, however. In re Q.D.T., 2010 WL 4366125, at *9.

      The reasonableness of attorney’s fees is a question of fact to be determined
by the trier of fact. Id. The party seeking to recover attorney’s fees has the burden
of proof. Id. A court may not take judicial notice that usual and customary fees
are reasonable unless the trial court awards attorney’s fees under section 38.001 of
the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code
Ann. § 38.001 (West 2008); Charette v. Fitzgerald, 213 S.W.3d 505, 514–15 (Tex.
App.—Houston [14th Dist.] 2006, no pet.) (mem. op.). In this case, the trial court
did not award attorney’s fees under section 38.001. Mae had the burden to prove
the reasonableness of the attorney’s fees she sought. In re Q.D.T., 2010 WL
4366125, at *9. The reasonableness of fees must be supported by competent
evidence.   Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 752 (Tex. App.—
Houston [14th Dist.] 2005, no pet.).

      Mae’s counsel testified that his services were necessary in this case, that he
was familiar with the standard prevailing rates and fees for services of this type,
and that his fees were in compliance with local and state bar rules. He testified that
he charged $350 per hour and that he expended a total of 44.05 hours on the case,
and that this work was necessary to bring the matter to a just conclusion. The
evidence includes an itemized invoice showing how this time was spent. We agree
with our dissenting colleague that this testimony is sufficient to prove that the work
he did was necessary. But, to prove that the attorney’s fees are reasonable, Mae

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needed to show that the fee for that work was reasonable.

       Mae’s counsel did not testify that his rate of $350 per hour was reasonable,
however, nor did he testify that his fee of $350 per hour was within the standard
prevailing rate.2       Our dissenting colleague concludes that Mae’s counsel’s
statement that his fees were in compliance with local and state bar rules is evidence
that he charged a reasonable rate. But, this statement is not a statement that a fee is
reasonable.       A fee complies with the state bar rules if the fee is not
“unconscionable.”3 The record does not reveal any evidence that $350 per hour is
a reasonable rate.


2
  Our dissenting colleague suggests that we conclude the evidence is insufficient to prove that the
attorney’s fees are reasonable because Mae’s counsel failed to use “magic words.” The problem
is not the lack of “magic words.” To the contrary, there is no evidence, in any form, that Mae’s
counsel charged a reasonable hourly rate. That Rose’s counsel did not dispute the rate charged
or offer an alternative rate is not evidence that Mae’s counsel’s rate of $350 per hour is
reasonable.
3
  An attorney’s testimony that fees are in compliance with the local and state bar rules is not
proof of reasonableness. Counsel did not identify any particular rule nor indicate how
compliance with local or state bar rules would inform the reasonableness of fees charged. Rule
1.04, entitled “Fees,” contains a prohibition against illegal or unconscionable fees. See Rule
1.04(a). See Tex. Disciplinary R. Prof’l Conduct 1.04(a) reprinted in Tex. Gov’t Code Ann. tit.
2, subtit. G app. A (West, Westlaw through 2013 3d C.S.) (Tex. State Bar R. art. X, § 9). Rule
1.04(b) contains a paragraph that lists factors for determining the reasonableness of a fee. Rule
1.04 does not define “unconscionable” as “unreasonable”; rather, under Rule 1.04(a), a fee is
unconscionable if a competent lawyer could not form a reasonable belief the fee is reasonable.
Tex. Disciplinary R. Prof’l Conduct 1.04(a). Furthermore, the drafters of the rules note in the
comments to the rule that the standard for compliance is a higher standard than reasonableness.
Id. cmt. 1. The first comment to the rule provides that “A lawyer in good conscience should not
charge or collect more than a reasonable fee,” but the comment acknowledges that
“‘reasonableness’” is too vague and uncertain to be an appropriate standard in a disciplinary
action” to determine lack of compliance with the Rules. Id. cmt. 1. Accordingly, attorneys are
subject to discipline only for illegal or unconscionable fees. Mae’s counsel’s statement that her
fees complied with the local and state bar rules can be interpreted, at best, as a statement that her
fees were not unconscionable and thus that a competent lawyer could form a reasonable belief
that the fees were reasonable. See McCleery v. Comm’n for Lawyer Discipline, 227 S.W.3d 99,
104 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). This statement does not constitute an
expert opinion of Mae’s counsel that the attorney’s fees actually were reasonable.

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       Because the award of attorney’s fees is not supported by legally sufficient
evidence that the fees were reasonable, we conclude the trial court erred in
awarding attorney’s fees in the amount of $16,292.63. Mae’s second issue is
sustained. See In re Q.D.T., 2010 WL 4366125, at *10.4 Accordingly, we modify
the judgment to delete the award of attorney’s fees. See id.

    C. Preservation of Error: Evidence of Mental Capacity

       In her first issue, Rose asserts the trial court erroneously excluded evidence
of mental capacity and fraud during the trial. At trial in September 2013, Rose
indicated that she intended to introduce evidence to prove that the warranty deed
was invalid because (1) Beulah lacked mental capacity to sign the deed and (2)
Mae fraudulently induced Beulah to sign the deed.

       To preserve error on the ground that evidence was improperly excluded, a
party must inform the trial court of the substance of the evidence by an offer of
proof, unless the substance was apparent from the context. See Tex. R. Evid.
103(a)(2); In re N.R.C., 94 S.W.3d 799, 806 (Tex. App.—Houston [14th Dist.]
2002, pet. denied). Rose did not make an offer of proof describing the evidence
she sought to introduce on the issues of mental capacity and fraud. The record
reveals that the only time Rose made an offer of proof was after the trial court
sustained an objection to a video record of Beulah because the video violated the
rule against hearsay. Rose did not make an offer of proof regarding the evidence
she sought to introduce on the issues of mental capacity and fraud, and the
4
  Our dissenting colleague concludes that this case is distinguishable from Q.D.T. because in
Q.D.T. there were no itemized invoices, no statement that the fees were necessary to bring the
matter to a just conclusion, and no testimony that the fees complied with the state bar rules. In
Q.D.T., the attorney testified that he had been licensed in Texas since 1976 and was familiar with
the type of case and the normal charges for such cases, that his hourly rate was $250.00, and that
he spent 18 hours on the case for mediation, temporary hearings, filing cross actions, and having
discussions and exchanges. See In re Q.D.T., 2010 WL 4366125, at *9. This court determined
that the award of attorney’s fees was not supported by sufficient evidence. Id.

                                                8
substance of this evidence was not apparent from the context. Therefore, Rose did
not preserve error in the trial court as to this issue. See Ismik v. Ibrahimbas, No.
14-10-00057-CV, 2011 WL 2421017, at *6 (Tex. App.—Houston [14th Dist.] Jun.
16, 2011, no pet.) (mem. op.). We overrule Rose’s first issue. See id.

                               III.         CONCLUSION

      The evidence is legally sufficient to prove that Mae holds title to The
Hopper Property. Rose did not preserve for appellate review her argument that the
trial court erred in excluding evidence of fraud and mental capacity. Mae did not
present legally sufficient evidence that her attorney’s fees were reasonable.
Accordingly, we modify the trial court’s judgment to delete the award of attorney’s
fees. We affirm the judgment as modified.




                                      /s/       Kem Thompson Frost
                                                Chief Justice



Panel consists of Chief Justice Frost and Justices Christopher and Busby
(Christopher, J. dissenting).




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