                                                                                          ACCEPTED
                                                                                      03-12-00558-CV
                                                                                              7902035
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                               11/19/2015 11:03:14 AM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK

                       No. 03-12-00558-CV
                                                 FILED IN
______________________________________________________
                                           3rd COURT OF APPEALS
                                                                 AUSTIN, TEXAS
                     IN THE COURT OF APPEALS       11/19/2015 11:03:14 AM
             THIRD COURT OF APPEALS JUDICIAL DISTRICTJEFFREY D. KYLE
                             AUSTIN, TEXAS                  Clerk



______________________________________________________________________________

    HAPPY JACK RANCH, INC. & FREDERICK J. BEHREND,
                      Appellants
                         VS.
    HH&L DEVELOPMENT, INC., MATTHEW STOLHANDSKE,
             TRUSTEE, & MICHAEL STRNAD,
                       Appellees

_______________________________________________________
      ON APPEAL FROM THE 22ND JUDICIAL DISTRICT COURT,
       COMAL COUNTY, TEXAS, CAUSE NO. C2010-1022A
              HON. CHARLES RAMSEY, PRESIDING

 ____________________________________________________________________________

  APPELLEE STRNAD’S SECOND MOTION FOR REHEARING
  _________________________________________________________




                                       Ted Cackowski
                                       SBN: 03575900
                                       ATTORNEY AT LAW
                                       1141 N. Loop 1604 E. #105
                                       San Antonio, TX 78232
                                       Tele: 210 383 7277
                                       Email: TedCLaw@aol.com


                                                                                1
                       No. 03-12-00558-CV
______________________________________________________
                     IN THE COURT OF APPEALS
             THIRD COURT OF APPEALS JUDICIAL DISTRICT
                             AUSTIN, TEXAS

______________________________________________________________________________

    HAPPY JACK RANCH, INC. & FREDERICK J. BEHREND,
                      Appellants
                         VS.
    HH&L DEVELOPMENT, INC., MATTHEW STOLHANDSKE,
             TRUSTEE, & MICHAEL STRNAD,
                       Appellees

_______________________________________________________
      ON APPEAL FROM THE 22ND JUDICIAL DISTRICT COURT,
       COMAL COUNTY, TEXAS, CAUSE NO. C2010-1022A
              HON. CHARLES RAMSEY, PRESIDING
 ____________________________________________________________________________



  APPELLEE STRNAD’S SECOND MOTION FOR REHEARING


TO THE HONORABLE THIRD COURT OF APPEALS:


Appellee Michael Strnad asks this Court to reconsider its substituted
opinion filed November 6, 2015, grant Strnad rehearing on said opinion and
upon rehearing affirm the trial court’s award of attorneys’ fees to Michael
Strnad.




                                                                                2
                           Table of Contents

I. Rehearing points: ...................................... 4

 A. POINT ONE- Behrend, having        failed to object to or
 brief   any claimed impropriety of       the written “proffer”
 procedure, did not preserve any error on appeal. Without
 objection ( and seeming acquiescence)         to the failure to
 formally introduce the proffer, it was not an abuse of
 discretion for the trial court to consider it evidence
 when affirmed     and sworn to     in open court. Judge Ramsey
 was never given an objection sufficiently specific to give
 him an opportunity to rule on the issues that this Court
 now opines on at great length. Behrend’s only substantive
 objection at     the     hearing and in his Motion to Strike
 Brief and Proffer was late designation of expert
 testimony. Absent unfair surprise, Judge Ramsey did not
 abuse his discretion in considering Strnad’s evidentiary
 proffer on attorney’s fees. ............................. 4


 B. POINT TWO-This Court        substituted its judgment for
 that of the     trial Court and ignored the plain meaning        of
 the words “affirm,”       “proffer” and “swear” when it
 reasoned that there was “…not an attempt to prove any
 facts regarding the attorney fees themselves, including
 their reasonableness or necessity…” [Opinion page 15] ... 7


 C. POINT THREE-        This Court has substituted its own
 judgment for that of the trial court when it concluded:
 “there is no indication that the parties relied on or
 treated as admitted the attorney-fees evidence at issue

                                                                   3
     here, the evidence was not constructively admitted for
     purposes of our review.” ............................... 11


     D. POINT FOUR-     Judge Ramsey was requested, without
     objection, to take judicial notice of the Court’s            entire
     record. Behrend’s attorney’s fee affidavit,          viewed in the
     context of the entire record,       is some evidence of
     Strnad’s attorney’s     fees. To permit Behrend to controvert
     Strnad’s nearly identical fee request runs amuck or the
     consistency principles underpinning judicial estopple.
     Judge Ramsey’s    ruling was not arbitrary, unreasonable or
     without regard to guiding legal principles. The evidence
     is not so weak as to make       Strnad’s fee award clearly
     wrong and manifestly unjust. ........................... 13

   II. ARGUMENT AND AUTHORITIES ............................. 13

   III. Conclusion and Prayer ............................... 20

I. Rehearing points:

   A.    POINT ONE- Behrend, having failed to object to or brief any
         claimed impropriety of the written “proffer” procedure, did not
         preserve any error on appeal. Without objection ( and seeming
         acquiescence) to the failure to formally introduce the proffer, it
         was not an abuse of discretion for the trial court to consider it
         evidence when affirmed and sworn to in open court. Judge
         Ramsey was never given an objection sufficiently specific to
         give him an opportunity to rule on the issues that this Court
         now opines on at great length. Behrend’s only substantive
         objection at the   hearing and in his Motion to Strike Brief and

                                                                           4
       Proffer was late designation of expert testimony. Absent unfair
       surprise, Judge Ramsey did not abuse his discretion in
       considering Strnad’s evidentiary proffer on attorney’s fees.
1. Strnad’s proffer was “affirmed” and “sworn to” in open court by his
counsel. Behrend did not object to the proffer procedure or the sufficiency
of its evidentiary content demonstrating the reasonableness and necessity
of Strnad’s attorneys fees. Behrend, consistent with characterizing the
proffer as offered evidence, only moved to strike the “proffered evidence”
based on the late designation of Strnad’s attorney as an expert witness.

2. In Behrend’s ”Motion to Strike Brief and Proffer in Support of Strnad's
Motion for Attorney's Fees” [CF pg. 506] he only asserted one substantive
complaint:

      “1. Defendant's proffer attempts to put before the Court evidence of
      attomey's fees when this Defendant has failed to timely and properly
      designate an expert witness or to provide information and documents
      requested under Rule 194.2(f) and Rule 195.2.” [emphasis added]


3. Behrend’s language : “proffer attempts to put before the Court evidence
of attomey's fees” bespeaks his clear understanding that the “proffer” filed
before the hearing was an evidentiary offer in writing. Behrend’s attorney
knew he had to object and he did so in writing before the hearing. This
Court observes [Opinion page 14]:

      “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.”


                                                                                      5
4. That virtually the entire hearing was spent on the single objection as to
late designation is not surprising, because that was the only complaint before
the trial court. There was never any contention the “proffer” did not contain
adequate evidence of reasonableness or necessity. The trial court would not
have expected an objection to necessity or reasonableness when two
attorney’s submitted the same hourly rate and hours.

5. To be clear, the procedure was simple and efficient,

                 (a) Strnad filed a written proffer1,

                 (b) Behrend filed a motion to strike the proffer based on late
                 designation ( there was no complaint that the proffer content was
                 insuffient on the issues of necessity and reasonableness.)

                 (c) Strnad’s counsel affirmed and swore to the proffer at the hearing,

                 (d) Judge Ramsey took the matter under advisement and awarded
                 Strnad his fees.
6. Without objection, Judge Ramsey did not abuse his discretion in
concluding ( apparently, fees were awarded) Strnad’s counsel used the
language “affirm and swear today” to be clear he was adopting the proffer as
his hearing testimony.

7. Behrend’s announcement at the beginning of the hearing circumscribes
his view of the proffer and what he believed was before the Court.
Behrend’s counsel announced [ RR Vol. 3, pg.1, ln. 11] as follows:



1
  The “proffer” was filed as initial document with a supplement for time and events after the hearing on
the merits. [CR pages 457 and 539]
                                                                                                           6
         “MR. CAZIER: We actually have an objection                         to -- based on late
         designation of an expert witness, a motion to strike proffered evidence on
         attorney's fees. And that's a ten-minute matter. [emphasis added].”


8. The announcement of Behrend’s counsel was reason for the Court to
assume that he believed the “proffer” was before the court as “evidence.”

B.        POINT TWO-This Court substituted its judgment for that of the
          trial Court and ignored the plain meaning of the words “affirm,”
          “proffer” and “swear” when it reasoned that there was “…not an
          attempt to prove any facts regarding the attorney fees
          themselves, including their reasonableness or necessity…”
          [Opinion page 15]
9. Regarding the “proffer” on attorney’s fees, Strnads’s counsel testified:

          “I have given him a proffer which I affirm and swear today is true and
         correct.” [RR Vol. 3 pg. 11 ln 4]


10. This Court concluded that the testimony:

          “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.” [Opinion
         page 15]


11. The trial court could have equally well reasoned and found that the
words “affirm” and              “proffer” are given their ordinary meanings and that
Strnad’s counsel’s “affirmation” 2 was also an attempt to adopt the filed


2
 One of the dictionary definitions of “affirm” is ” to declare to be true; assert positively.” Source:<
http://www.thefreedictionary.com>
                                                                                                          7
“proffer” as his hearing testimony. It Strnad’s counsel’s language was only
intended as argument there would have been no need to use the word
“swear.”      The hour by hour comparability of Strnad’s              and Behrend’s
counsels fees was relevant to both the “reasonableness and necessity” of
attorney’s fees and to a rebuttable of Behrend’s contention that his attorney
was surprised by Strnad’s fee request and claimed late designation of an
expert.

12. Contrary to the clear use of the word “proffer in the captions of the
“proffer,” the Court concludes that the “proffer” is only the documents
attached to the “motion.” This Court reasons [Opinion page 14]:

      “Strnad likewise reasons that the above “testimony” affirming and
      swearing to the truth and correctness of the proffer [n. 8] transformed the
      documents attached to his motion into a “sworn proffer.” We disagree.”


13. In would      seem that using the ordinary meaning of the words that
“swearing a proffer is true” would make the proffer a “sworn proffer.” The
Supreme Court has done away with the formal requirement of a jurat. The
Supreme Courts view explained, in New Hampshire Insurance Co. v.
Magellan Reinsurance Co. Ltd., 02-11-00334-CV, Court of Appeals of
Texas, Second District, Fort Worth, January 10, 2013, is a follows:

          The Supreme Court of Texas, however, has recently held that for
      satisfying the government code’s definition of “affidavit, ” while the
      record must show that a purported affidavit was sworn to by the affiant, a
      jurat is not required. [emphasis added]




                                                                                    8
14. The Supreme Court in Mansions in the Forest, L.P. v. Montgomery
County, 365 S.W.3d 314, 55 Tex.Sup.Ct.J. 624 (Tex. 2012) is clear that the
focus is on substance not form.

         When a purported affidavit lacks a jurat and a litigant fails to provide
         extrinsic evidence to show that it was sworn to before an authorized
         officer, the opposing party must object to this error, thereby giving
         the litigant a chance to correct the error. …
         …
               There are " important prudential considerations" behind our rules on

         preserving error. In re B.L.D., 113 S.W.3d 340, 350 (Tex.2003). First,
         requiring that parties initially raise complaints in the trial court conserves
         judicial resources by providing trial courts the opportunity to correct errors
         before appeal. Id. Second, judicial decision-making is more accurate when
         trial courts have the first opportunity to consider and rule on error. Id. ("
         Not only do the parties have the opportunity to develop and refine their
         arguments, but we have the benefit of other judicial review to focus and
         further analyze the questions at issue." ). Third, a party " should not be
         permitted to waive, consent to, or neglect to complain about an error at
         trial and then surprise his opponent on appeal by stating his complaint for

         the first time." Id. (quoting Pirtle v. Gregory, 629 S.W.2d 919, 920
         (Tex.1982) (per curiam)). For these reasons, to preserve this issue for
         appeal, the County needed to present its complaint to the trial court.
         [emphasis added


15. Without an objection,                 there was no way Judge Ramsey or Strnad’s
could know that Behrend would later contend3 that counsel’s words: “I have

3
 It is not clear that this is Behrend’s contention. Though Behrend noted before the hearing that the proffer
was “unverified,” the contention that Strnad’s counsel recitation in open Court did not cure the objection
was not made at the hearing or in the motion for new trial.
                                                                                                           9
given him a proffer which I affirm and swear today is true and correct.” [RR
Vol. 3 pg. 11 ln 4] did not constitute evidence in the record that the proffer
was “sworn to before an authorized officer.” In fact, there were at least
three such officers present (Judge Ramsey, the clerk and Court reporter).

16. The “proffer” was               not just the attached documents4, but rather the
entirety both documents that were clearly captioned “proffer.” The “proffer”
consist of an initial document with a supplement for time and events after
the hearing on the merits, but before the hearing on attorney’s fees [CR
pages 457 to 492 and CR 539-549]. In note 8 [Opinion page 14] the Court
seems to recognize that the “proffer” consist of two documents:

         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.”
17. It is not clear why this Court attempted to primarily characterize the two
filings with the word “proffer,” and not the word “motion,” in the caption as
“Strnad’s motion for attorney fees.” The word “proffer” was intended to
have, and the trial court likely assumed the ordinary meaning5, “to offer for
acceptance; tender, to put before a person for acceptance; offer.” Like
many filed documents,                the     proffer and proffer supplement prayed for




4
  The attached documents included a copy of the fee affidavit of Behrend’s attorney previously filed and
the time details for Strnad’s attorney. Because Behrend’s attorney filed his time for both this case and the
prior nonsuited case, a tally sheet summing only the hours for this case (62. 3 hours) was also attached.
[CR page 490]
5
  Source: < http://www.thefreedictionary.com/proffer>.
                                                                                                          10
attorney’s fees. The primary focus and content, however, was to “proffer”
testimony.

18. The language in the “proffer” is clearly in the nature of testimony. In
his proffer, paragraph 2 [CR pg. 459], for example, Strnad’s counsel opines
to the reasonableness of the hourly rate as follows:

         “The below signed was honorably discharged from the Naval Reserve
         effective August 1, 2001 with the rank of Commander. In recent years the
         undersigned has handled matters in Comal, Bexar and Guadalupe Counties
         and the Western District of Texas. Mr. Cazier has asserted in his affidavit
         that $250/hour is reasonable for a case of this complexity in Comal
         County. The below signed is familiar with rates charged in Comal County
         by reason having had discussions with colleagues, having had discussions
         with lawyers who routinely practice in Comal and having examined
         affidavits submitted by lawyers who practice in Comal County. The below
         signed agrees with Mr. Cazier that $250 is reasonable in Comal County
         for experienced counsel. The below signed is requesting $250 per hour.
         Both Behrend and Strnad's counsel have expended approximately 62 hours
         of time through April 15, 20126 as shown on the attached exhibits.
         Behrend has filed a motion for reconsideration this date which together
         with hearing on this application justifies an additional award of fees
         beyond the time expended and delineated to this point in time.”



C.        POINT THREE- This Court has substituted its own judgment
          for that of the trial court when it concluded: “there is no

6
 A supplemental proffer was filed prior to the hearing and tendered to the Court at the hearing without
objection as to necessity or reasonableness. [RR Vol 3, pg. 12, ln. 9]. In the supplemental proffer [CR pg
540] Strnads counsel proffered “Responding to these, preparation for the hearings and attendance at the
hearings has required an estimated additional 21 hours of effort, bringing the total to, 83hours at $250/hour,
$20,750 through April 25, 2012.”

                                                                                                          11
        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.”
19. It was clear to all parties that th proffer was the “evidence” on attorney’s
fees. The only question before the trial Court was whether it should be
“stricken ” or, a distinction without a difference, permitted to be adopted by
Strnad’s counsel as his testimony.            That the proffer was the intended
evidence was clearly known and accepted by Behrend’s counsel. In fact,
Behrend’s counsel specifically characterized the proffer as “evidence.” At
the beginning of the hearing Behrend’s counsel announced [ RR Vol. 3,
pg.1, ln. 11] :

        “MR. CAZIER: We actually have an objection            to -- based on late
        designation of an expert witness, a motion to strike proffered evidence on
        attorney's fees. And that's a ten-minute matter. [emphasis added].”


20. In context, the trial court was well within reason to conclude that Mr.
Cazier was operating from the perspective that the proffer was de facto
admitted “evidence” unless “stricken.”            Both counsel and Judge Ramsay
conducted the hearing as though the proffer was admitted unless stricken.
Whether to “strike the proffered evidence” or admit it and award attorney’s
fees was taken under advisement. This procedure was an efficient use of
judicial resources and not objected to. It would have been duplicitous and
waste of judicial resources to swear in Strnad’s counsel for a regurgitation of
the filed “proffer.” To the extent it needed to be verified, adopted in open
court      and     incorporated in live testimony, without objection to the
procedure, Judge Ramsey was not acting arbitrarily and outside guiding

                                                                                     12
  principles, or the ordinary meaning of words, to find that Strnad’s counsel
  effected the adoption of his “ proffer” as his testimony with the words:

        “I have given him a proffer which I affirm and swear today is true and
        correct.” [RR Vol. 3 pg. 11 ln 4]



  D.     POINT FOUR-              Judge Ramsey was requested, without
         objection, to take judicial notice of the Court’s entire record.
         Behrend’s attorney’s fee affidavit, viewed in the context of the
         entire record, is some evidence of Strnad’s attorney’s fees. To
         permit Behrend to controvert Strnad’s nearly identical fee
         request runs amuck or the consistency principles underpinning
         judicial estopple. Judge Ramsey’s                ruling was not arbitrary,
         unreasonable or without regard to guiding legal principles. The
         evidence is not so weak as to make Strnad’s fee award clearly
         wrong and manifestly unjust.

II. ARGUMENT AND AUTHORITIES
  21. The crux of this Courts argument seems to be that the “proffer” was
  never “formally introduced” into evidence and moved from the Clerk’s
  Record to the Reporter’s Record. This formalism would seem to place form
  far over substance. The closest case in point that Appellee could find is
  Cruz v. Van Sickle, 452 S.W.3d 503 (Tex.App.-Dallas 2014, petition for
  review denied ) where the Court opined.

        “Although Cruz raised various objections to the affidavits, he did not
        assert they were never introduced into evidence. Cruz, therefore, failed to
        preserve this complaint for appellate review. See Tex. R. App. P. 33.1.
        Moreover, he has cited no legal authority, nor have we found any, to
                                                                                      13
      support his contention that affidavits filed with the trial court over one
      month before the attorney's fees hearing had to be formally introduced into
      evidence at the hearing after the trial court indicated he just needed to
      know when it was filed. We resolve this complaint against Cruz.”


22. The formalism of an oral regurgitation or moving a written proffer from
the clerk’s record to reporter’s record would seem to flow against the
current trend. In Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d
777, 783 (Tex. 2005) the Court commented:


           “For some years now the trend has been away from full evidentiary
      hearings in open court for most pretrial matters. While we have generally
      encouraged oral hearings when arguments may be helpful, [14]both the
      Legislature and this Court have discouraged oral presentation of testimony
      and evidence when they can be fairly submitted in writing.[15]Counsel
      can almost always direct the trial court's attention to pertinent deposition
      excerpts, discovery responses, or affidavits in less time than it takes to
      recreate them in open court. Presuming that most pretrial proceedings are
      evidentiary would not only discourage this trend, but would encumber
      thousands of routine hearings by requiring formal proof that no proof was
      offered.”
23. In another context the Court in Crum & Forster Specialty Insurance Co.
v. Creekstone Builders, Inc., 01-14-00907-CV, Court of Appeals of Texas,
First District, October 27, 2015 disfavored requiring a formalistic document
move from the clerk’s to the reporter’s record.


           Here, although Creekstone did not present any evidence at the
      hearing on its forum non conveniens motion, it did attach evidence to its

                                                                                     14
      motion, and, thus, evidence relevant to the forum non conveniens inquiry
      was before the trial court at the time it made its determination. We
      conclude that Creekstone's failure to present evidence at the hearing is not
      automatically fatal to its ability to meet its forum non conveniens burden,
      and we consider the evidence present in the record when reviewing the
      trial court's ruling. Cf. Benz Grp. v. Barreto, 404 S.W.3d 92, 97 (Tex.
      App.-Houston [1st Dist.] 2013, no pet.) (indicating that we must consider
      only evidence that was before trial court at time it made its forum non
      conveniens ruling).


24. The complaint with the proffer procedure, acquiesced in by Behrend in
the hearing, that this Court now advances on behalf of Behrend, was not
briefed in this Court. There was no complaint that would have permitted
Judge Ramsey an opportunity to rule on the issue . In Osterberg Peca v., 12
S.W.3d 31, 43 Tex.Sup.Ct.J. 380 (Tex. 2000) the Court opined:




                                                                                     15
      “Applying Texas procedural rules, we consider whether the Osterbergs
      raised their federal free speech and association arguments with sufficient
      specificity to give the trial court an opportunity to rule on the issues. See
      TEX.R.APP. P. 52(a) (Tex. Sup.Ct. and Tex.Crim.App.1986, amended
      1988, 1989, 1990, superseded 1997) ("In order to preserve a complaint for
      appellate review, a party must have presented to the trial court a timely
      request, objection or motion, stating the specific grounds for the ruling he
      desired the court to make if the specific grounds were not apparent from
      the context."); [7] McKinney v. National Union Fire Ins. Co., 772 S.W.2d
      72, 74 (Tex.1989); see also In the Interest of Shaw, 966 S.W.2d 174 a
      specific objection be lodged in the trial court is to ensure that the trial
      court has the opportunity to rule on the issue.").”


25. Given that both Beherned’s and Strnad’s counsel sought nearly identical
hours and advocated the same hourly rate as reasonable, it would not be
expected that Mr. Cazier would have demanded that Strnad’s counsel be
formally sworn and orally restate his extensive proffer. Judicial notice was
requested [CR pg. 460] in Strnards proffer of all the related litigation files.
There was no objection filed or stated at the hearing.                 Judicial notice of
Cazier’s fee affidavit [CR pg. 410] and the entire file is some evidence of
reasonableness and necessity. See In re Estate of Downing, 461 S.W.3d 231
(Tex.App.-El Paso 2015) as follows:

      Further, it is well-settled that a trial court can properly take judicial notice
      of its own records and prior pleadings in the case, with or without a
      request of a party. See, e.g., In re Estate of Clark, 198 S.W.3d 273, 275
      (Tex.App. -- Dallas 2006, pet denied); In re J.A.S.C., 430 S.W.3d 544,
      545 n.2 (Tex.App. -- Dallas 2014, no pet.); Cognata v. Down Hole
      Injection, Inc., 375 S.W.3d 370, 379 (Tex.App. -- Houston [14th Dist.]
      2012, pet denied).
                                                                                         16
26. The standard of review is well summarized in Brockie v. Webb, 331
S.W.3d 135 (Tex.App.-Dallas 2010) and quoted at length for ease of
reference.




                                                                  17
     When an appellant is challenging the legal sufficiency of the
evidence to support a finding on which it did not have the burden of proof
at trial, the appellant must demonstrate on appeal that no evidence exists
to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58
(Tex.1983); Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835
S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ). When reviewing the
record, we determine whether any evidence supports the challenged
finding. BBQ Blues Texas, Ltd. v. Affiliated Business Brokers, Inc., 183
S.W.3d 543, 545 (Tex.App.-Dallas 2006, pet. denied). If more than a
scintilla of evidence exists to support the finding, the legal sufficiency
challenge fails. Formosa Plastics Corp. USA v. Presidio Eng'rs &
Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Westech Eng'g, 835
S.W.2d at 196.


     When an appellant challenges the factual sufficiency of the evidence
on an issue on which it did not have the burden of proof, the appellant
must demonstrate the evidence is insufficient to support the adverse
finding. Westech Eng'g, 835 S.W.2d at 196. In reviewing this point, we
consider, weigh, and examine all the evidence presented at trial. Plas-Tex,
Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We set aside
the finding for factual insufficiency only if the evidence supporting the
finding is so weak as to be clearly wrong and manifestly unjust. Cain
v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).


      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 fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained; (5) the time limitations
                                                                                18
      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).


             It is not necessary that the record include evidence on each of
      these factors. See Burnside Air Conditioning v. T.S. Young, 113 S.W.3d
      889, 897-98 (Tex.App.-Dallas 2003, no pet.). As a general rule, the
      nature and extent of the attorney's services are expressed by the
      number of hours and the hourly rate. Id. There is, however, no rigid
      requirement that these facts must be introduced into evidence to
      support a finding that attorney's fees are necessary and reasonable.
      Id.;   Hays & Martin, L.L.P. v. Ubinas-Brache, M.D., 192 S.W.3d 631,
      636 (Tex.App.-Dallas 2006, pet. denied). [emphasis provided].


27. Cazies’r fee affivadit viewed in the context of the Court’s entire file is
some evidence Andersen factors (1) and (4) delineated above. For Judge
Ramsey to have abused his discretion Behrend would have had to
demonstrate that the fee award “ was arbitrary, unreasonable, or without

regard to guiding legal principles, or was without supporting evidence.

Where the Court’s observation from its record is that the actions of

counsel were lockstep and “tit for tat,” the filed fee affidavit of one

attorney is some evidence to support of the reasonableness and

necessity of his opposing counsel fees when they are nearly identical

in hours and hourly rate.           To permit an attorney to               impeach his

                                                                                       19
  opponent’s nearly identical fee request contravenes the underpinning

  principles, if not the letter of the principle of judicial estoppel. In

  Gevinson v. Manhattan Construction Co. of Okl., 449 S.W.2d 458 (Tex.

  1969) the Court that “It has been said that one who introduces a

  document vouches for its accuracy and will not be allowed to impeach

  or contradict its recitals.” Though Caziers fee affidavit may not meet

  the formal requirements of judicial estopple, Caziers fee affidavit is

  some evidence.

III. Conclusion and Prayer
  28. This Court are has exalted form above substance. One reasoned
  interpretation that Judge Ramsey could have well adopted is that Strnad’s
  counsels language turned his “proffer” into a “sworn proffer” and further
  that Strnad’s counsel adopted the proffer as his testimony at the hearing.
  Behrends counsel did not object to procedure with the specificity
  circumscribed by the Texas Supreme Court in Mansions. The “proffer”
  which occupies 45 pages in the record [CR pages 457 to 492 and CR 539-
  549] is testimonial in nature and includes detailed time records of both
  counsel and the requisite opinion as to reasonableness of the hourly rate of
  $250, concurred in by both Strnad’s and Behrend’s counsel. The proffer is
  replete with an analysis of the record in this case and predecessor cases
  based on the same factual nucleus. Behrend did not complain of the issues
  addressed in Cruz or Mansions, nor were the issues briefed. No error was
  preserved. Aside form the failure to preserve error, Behrends counsel, to his


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credit, did not make any      disingenuous   effort to impeach the amount
Strnad’s fee request which was substantially the same as his own .

29. Appellee   prays that this Court grant rehearing and affirm the trial
court’s award of attorney’s fees.




                            Respectfully submitted,

                            /s/ Ted Cackowski
                            _________________________
                            TED CACKOWSKI
                            SBN: 03575900

                            1141 N. Loop 1604 E. #105
                            San Antonio, TX 78232
                            Tele: 210 383 7277
                            Facs: 866-271-5336
                            Email: TedCLaw@aol.com
                            ATTORNEY FOR APPELLEE
                            MICHAEL STRNAD




                    CERTIFICATE OF COMPLIANCE


I hereby certify that the foregoing document contains 4,013 words
according to the word count of the computer program used to prepare it, in
compliance with Rule 9.4(i)(2), excluding exempt items.

                                                                             21
                                                   /s/ Ted Cackowski


                        CERTIFICATE OF SERVICE
I hereby certify by my signature below that a true and correct copy of
the foregoing document has been served on counsel of record for Appellants
via E-filing on the date it was filed.


                                             /s/ Ted Cackowski



Allen Cazier,
Law Offices of Allen Cazier
8626 Tesoro Drive, Suite 500
San Antonio, Texas 78217


Mr. Pascual Madrigal
Law Offices of Pascual Madrigal
9504 N. IH 35, Suite 316
San Antonio, TX 78233

Mr. Matt C. Stolhandske
1004 South St. Mary’s
San Antonio, TX 78205




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