                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00111-CV
        ______________________________


       DARIN BALLARD, ET UX, Appellants

                          V.

THE FIRST NATIONAL BANK OF TRENTON, Appellee




   On Appeal from the 336th Judicial District Court
               Fannin County, Texas
               Trial Court No. 37860




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                         MEMORANDUM OPINION

           This is an appeal by Darin and Cindy Ballard of a summary judgment awarded to the First

National Bank of Trenton (Bank) in a breach of contract case. The Ballards appeal on the sole

contention that the trial court erred in taking evidence of, and awarding, attorney’s fees at

summary judgment hearing.1

           The record reveals that the trial court granted the Bank’s “motion for summary judgment in

all regards.” The Bank’s counsel then sought to admit his affidavit of attorney’s fees. The

Ballards’ counsel “ask[ed] the Court to allow us a hearing on the issue of attorney’s fees before

attorney’s fees are awarded on granting of the motion for summary judgment” and complained that

the affidavit “was seen here today for the first time.” Specifically, he objected “to the Court using

[the affidavit] as the sole basis for an award of attorney’s fees in the amount that’s stated” and

complained of its “conclusory” nature. To remedy the Ballards’ complaint, the court swore the

Bank’s counsel in, proceeded to question him regarding attorney’s fees, and allowed

cross-examination. The trial court granted attorney’s fees to the Bank in the reduced amount of

$16,554.00.

           The Ballards argue that the attorney’s fees affidavit and counsel’s testimony should have

been excluded based on Rule 166a(c) of the Texas Rules of Civil Procedure, which states:

“Except on leave of court, with notice to opposing counsel, the motion and any supporting

affidavits shall be filed and served at least twenty-one days before the time specified for hearing . .
1
    The Ballards do not allege that the summary judgment was improper.

                                                          2
. . No oral testimony shall be received at the hearing.”2 They ask that this Court reverse the trial

court’s judgment.3

             The Bank also prays that the trial court’s judgment with regard to attorney’s fees be

vacated and remanded. Neither party has requested that this judgment be affirmed. We cannot

grant relief not requested.            Mauldin v. MBNA Am. Bank, N.A., No. 2-07-208-CV, 2008

WL 4779614, at *4 (Tex. App.—Fort Worth Oct. 30, 2008, no pet.) (mem. op.) (citing Stevens v.

Nat’l Educ. Ctrs., Inc., 11 S.W.3d 185, 186 (Tex. 2000)); see also Jay Petroleum, L.L.C. v. EOG

Res., Inc., No. 01-08-00541-CV, 2009 WL 1270251, at *3 (Tex. App.—Houston [1st Dist.] May 7,

2009, pet. denied); Lentino v. Cullen Ctr. Bank & Trust, No. 14-00-00692-CV, 2002 WL 220421,

at *11 (Tex. App.—Houston [14th Dist.] Feb. 14, 2002, pet. denied) (not designated for

publication) (“We cannot grant relief appellants do not request.”); Molina v. Moore, 33 S.W.3d

323, 327 (Tex. App.—Amarillo 2000, no pet.); W. End API, Ltd. v. Rothpletz, 732 S.W.2d 371,

374 (Tex. App.—Dallas 1987, writ ref’d n.r.e.) (“What can be better established than the

proposition that relief that has not been prayed cannot be granted?”).


2
    Rule 166a(e) provides:

           [i]f summary judgment is not rendered upon the whole case or for all the relief asked and a trial is
           necessary, the judge may at the hearing examine the pleadings and evidence on file, interrogate
           counsel, ascertain what material fact issues exist and make an order specifying the facts that are
           established as a matter of law, and directing such further proceedings in the action as are just.

TEX. R. CIV. P. 166a(e).
3
 The Ballards do not ask this Court to render judgment. In any event, if successful, the Ballards would only be
entitled to a reversal and remand of the trial court’s attorney’s fee award.

                                                            3
       Due to the unique disposition of this case, in which both parties to this appeal request the

same relief, we reverse the trial court’s judgment of attorney’s fees and remand for further

proceedings on this sole issue.




                                                    Jack Carter
                                                    Justice

Date Submitted:       June 16, 2010
Date Decided:         June 29, 2010




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