COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS

NO. 05-88-01061-CV

AMERICAN 10-MINUTE OIL CHANGE, INC., FROM A DISTRICT COURT BRICAR, INC., STEVEN J. SHIELDS, E.M. DELOZIER, RALPH J. KAUFMANN, DELF ANN DAWSON, MICHAEL A. HAMLIN, CAREY MILLER AND BRIAN MILLER, APPELLANT,

v.

METROPOLITAN NATIONAL BANK- FARMERS BRANCH, APPELLEE. OF DALLAS COUNTY, TEXAS

BEFORE JUSTICE HOWELL, LAGARDE AND WHITTINGTON DISSENTING OPINION BY JUSTICE HOWELL AUGUST 15, 1989

I dissent from the attorney's fee judgment. That aspect

should be reversed and remanded for trial upon its merits.

As stated in the majority's own authority:

The purpose of rule 166-A is to avoid the conventional trial of clearly unmeritorious claims or untenable defenses. Its purpose is not to deprive litigants of their rights to a full, conventional trial if there are involved in the case any material questions of fact.

Ouerner Truck Lines v. Alta Verde Industries, 747 S.W.2d 464, 469 (Tex. App.—San Antonio 1988, no writ). It is further well established that summary judgments are not granted by default. Even though a motion for summary judgment is wholly

uncontroverted, a trial court possesses the discretion, and

even the obligation, to deny the motion unless he is

satisfied that the movant's claim is meritorious or the

opponent's position is untenable. We cannot override that

exercise and substitute our decision for the discretion of

the trial court.

It is well established that a trial court is presumed to

be an expert as to attorney's fees. In a conventional trial,

where the claimant has presented no evidence whatever upon an

attorney's fee claim, the trial court may nevertheless award

a fee based upon its own expertise and its knowledge of the

services rendered as disclosed by the proceedings in the

case. Conversely, it is equally well-settled that in a conventional trial where the court is acting as the finder of

fact, he may award less than the fee placed in evidence by the claimant even though the opponent offers no opposition as to amount. It is illogical to hold that a trial court, if,

as here, it is not convinced that the entire amount claimed

for attorney's fee is justified, has any less authority than

when he presides at a summary judgment hearing.

Of course, it is not the purpose of the summary judgment

rule to substitute trial by affidavit for a plenary trial

with live evidence, either with or without a jury in

attendance. In a conventional trial, if the trial court

awards a lesser fee than the one placed in evidence, the

claimant is bound by the trial court's holding, even though

the evidence was uncontroverted. In order to obtain relief

in the appellate court, he must show the judgment to be legally or factually insufficient. The disappointed attorney's fee claimant in a summary judgment hearing is more fortunate. When the trial court below announced that it was awarding less than the attorney's fee claimed, it was the prerogative of appellee bank, as the summary judgment movant to announce that it would not accept the award and to request that the attorney's fee claim be tried upon its merits.

Appellee may not cross-appeal the exercise of judicial

discretion by the court below in refusing to grant a summary

judgment for part of the recovery sought.

The ultimate reason that this Court is committing error

is because it is making an award that the trial court refused

to make. Our majority concedes that the trial court "could

have refused to award any attorney's fees" (slip op. 12). On

pure legal theory, the court probably erred in attempting to

award a lesser amount in order to expedite the disposition of

the case. However, the error was harmless. The reason:

because claimant bank was free to accept or refuse the award

proffered by the trial court. Certainly, the opposing party had no grounds to complain because it had failed to controvert the attorney's fee claim as to amount.

However, the error of the trial court is beside the point. In final analysis, our majority has found no grounds to increase the attorney's fee award other than the default of the opposing party. This, by all authorities, is improper. Even further, our majority has, in effect, held

that a trial court is without discretion—that it was

mandatory that a default be imposed. Truly, we cannot

rectify trial court error by committing error of our own.

I therefore dissent as to the attorney's fee award. The

judgment should be reversed and remalid4d on this issue

DO NOT PUBLISH TEX. R. APP. P. 90 88-01061.DF