An attorney who intervened in a divorce case to recover unpaid attorney’s fees received judgment for $1,508.50 despite his claim for $26,612. The attorney sued based on two theories: sworn account and section 106.002 of the Texas Family Code, which allows a court to award reasonable and necessary attorney’s fees in a suit affecting the parent-child relationship. In Rudberg v. N.B.P, No. 05-13-00535-CV (Tex. App. – Dallas July 2, 2014), the attorney lost on both grounds.
|Need help with an appeal? Has the other side appealed? Contact me for a free consultation.|
A suit on sworn account is a common cause of action to add to a suit to recover attorney’s fees. It is commonly coupled with a cause of action for breach of contract. The sworn account is usually pled as a “back-up” cause of action in case something goes wrong with the cause of action for breach of contract.
Requirements for Sworn Account
A suit for sworn account is based on Rule 185 of the Texas Rules of Civil Procedure. The rule requires that the plaintiff file a verified pleading for a claim
on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed.
The attorney complied with the rule, except that he swore that $37,612 was due: The attorney did not include a deduction for an $11,000 payment that everyone – including the attorney – agreed had been paid. Because the sworn account did not show the $11,000 payment, the sworn account did not strictly comply with Rule 185, so the attorney did not properly plead a sworn account.
Reasonableness and Necessity of Attorney’s Fees
The attorney also attempted to recover the full $26,612 as reasonable and necessary attorney’s fees under Texas Family Code section 106.002. But the amount of an award under this section is within the discretion of the trial court.
The Dallas Court of Appeals affirmed the trial court’s attorney’s fees award of $1,508.50, explaining its view this way:
In summary, the trial court heard evidence that appellant was not required to file any motions for temporary orders regarding child custody, child support, or spousal support because Husband and Wife had reached agreement on these issues on their own; that Wife initiated a conversation with Husband that ultimately resulted in a settlement of the case without assistance from appellant; that Husband and Wife had very little community property; that appellant conducted discovery despite having been told by Wife not to do so and attempted to “create a community estate”; that appellant unsuccessfully moved to compel production of documents from third parties; that appellant spent a fraction of his time on issues important to the SAPCR; and that appellant had already been paid $25,000 if not more for services rendered in the case. Based on this record, we cannot conclude that the trial court abused its discretion by reducing appellant’s award of attorney’s fees to $1,508.50.
Thus, the court of appeals affirmed the trial court’s award.