COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

MI CHAEL

BA I L EY, Appellant,

v. VI CTORI A RODRI GUEZ , Appellee

. § § § § § § No. 08-10-00149- CV

Appea l from 383rd District Court of El Paso County , Texas (TC # 2005AG1399)

O P I N I O N Michae l Ba iley appea ls an attorney ’s fee awa rd of $350 for leg al service s rende red on behalf of Victoria

Rodrigue z. For the re asons that follow, we reve rse.

F ACTUAL BACK GR OUND On S eptember 18, 2009, Michae l Ba iley filed sui t to modify an order affec ting the pare ntchild rela tionship with reg ard to his son. The petition named Victoria Rodrigue z as Respondent and L ucy L opez and L eslie B ailey as i nterve nors. Rodrigue z filed her orig inal answe r on October 16, 2009. On Dec ember 1 0 , s h e fi l ed specia l exceptions to the ref ere nces to L ucy L opez and L eslie Ba iley in para g raphs two and seven of Ba iley ’s petition. The motion complained that neither L ucy L opez nor L eslie Ba iley had filed a plea in intervention nor had they been g rante d leave to intervene

as require d by Texas Rule of Civil Procedur e 60. Rodrig uez also complained that B ailey failed to alleg e g rounds for intervention as require d by Texas Family Code Section 102.004(b) and Texas Rule of Civil Procedur e 47. Rodrigue z asked the court to strike the joinder of intervenor s and order Ba iley to re- plead. On J anuar y 12, 2010, L ucy L opez, L esl ie Ba iley , and Hec tor Holg uin filed a petition in int erve ntion as g randpa rents of the child.On Marc h 3, 2010, Rodrigue z’s attorney , L y da Ness-G arc ia, filed a counter petition, motion
to strike, and specia l exceptions, complaining that “[i] nterve nors have failed to establish a leg al or fac tual basis for their reque st.” The motion also complained that Ba iley fa i l ed to “enume rate standing ” under Sections 102.003 and 102.004(b) of the Tex as Family Code, and that he failed to establish a basis for intervention within a separ ate plea ding unde r Texas Rules of C ivil Procedur e 47 and 60. Rodrigue z asked the court to strike the intervenor s and order Ba iley to reple ad. She also pled for rea sonable attorney ’s fee s incurre d in connec tion with the motion. A wee k later, Ba iley nonsuited the intervention. At a hear ing on Ma

rch 30, 2010, Ness-G arc ia reiter ated the arg uments made in he r motion with respe ct to the intervenor s and t h eir lack of standing

. She acknow ledg ed that the nonsuit rende red her motion moot, but she arg ued that the intervention was filed frivolously and asked the
court to awa

rd her $518.10 as the amount of rea sonable and nece ssary attorney ’s fee s. Over Ba iley ’s objection, the cour

t awar ded fe es of $350.

STANDARD OF REVIEW We revie w a trial court’s decision to awa rd attor n ey ’s fees for an abuse of di scre tion. We must determine “w hether the trial court acte d without r efe renc e to any g uiding r ules or princ iples; in other words, whether the act was ar b i t ra ry or unreasonable .” W orford v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990). The mere fac t that a trial judge may decide a matter within his discretionar y authority in a differ ent manner than an appellate jud ge i n a simil ar circ umstance does not demonstrate that an abuse of discretion occur red. Downer v. Aquamarine Operators , Inc. , 701 S.W .2d 23 8 , 241-42 (Tex. 1985), cert. denied , 476 U.S. 1159, 106 S.Ct

. 2279, 90 L .Ed.2d 721 (1986). An abuse of discretion does not occur wher e the trial court bases its decisions on conflicting evidenc e. Davis v. Huey , 571 S.W .2d 859, 862 (Tex. 1978); Kirkpatrick v. Mem orial Hosp. ofGarland , 862 S.W .2d 762, 776 (Tex.App.--Da llas 1993, writ denied)

. Fur thermore , an abuse of discretion does not oc cur a s long a s some evidenc e of a substantive and proba tive char acte r exists
to support the trial court' s decision. Holley v. Holley , 864 S.W .2d 703, 706 (Tex.App.--Houston [1st Dist.] 1993, writ denied)

.

WERE TH E FEES ORDERED AS SANCTIONS ? Ba iley ’s arg uments on appea l are premised on the basic theory that the trial court must have

awa rded the attorney ’s fee s as a sanction beca use no other theory would support the awa rd. I n seven issues, he contends the sanction order was err oneous beca use: (1) the trial court failed to g ive him notice that a sanction hear ing would be held befor e imposing the sanction; (2) the trial court violated his due proce ss rig hts by failing to provide him a meaning ful opportunity to be hear d p ri o r t o the
assessment of sanctions; (3) t h e t ri al court err ed in order ing sanctions wher e Rodrigue z failed to prove Ba iley or his attorney acte d in bad faith, with the intent to hara ss, or with an improper purpose; (4) the trial court erre d i n aw ar d i ng sanctions where Rodriguez’s attorney failed to identify in her motion the sanctionable conduct on which she was basing her reque st for attorney ’s fee s; (5) the trial
court err ed in awa

rding sanctions wher e Rodrigue z’s attorney failed to identify in her motion the rule on which she w as basing her r equest for attorney ’s fe es; (6) the trial court a bused its discretion by failing to explain the rea son for imposing attorney ’s fee s as a sanction ag ainst Ba iley ; and (7) there

was no e vidence to support an awa rd of a ttorney ’s fe es. The g ener al rule is that a pa rty cannot rec over attorney ’s fee s from an a dverse party unless permitted by a statute or rule of proc edure , by a contr act be tween the parties, or under e quity

. See Tony Gullo Motors I, L.P. v. Chapa , 2 12 S.W .3d 299, 310-11 (Tex. 2006)(r ecove ry of attorney ’s fee s

rec overa ble if permitted by statute or contra ct betwee n parties) ; Knebel v. Capital Nat’l Bank , 518 S.W .2d 795, 799 (Tex. 1974)(a ttorney ’s fee s can be awa rded under equity

). Unless attorney ’s fee sare mandated by statute, the party seeking fee s must plead for them. R. Conrad Moore & Associates,

Inc. v . Lerma , 946 S.W .2d 90, 96 (Tex.App.--El Paso 1997, wr it denied)

. A par ty should identify the authority entitling it to attorney ’s fe es in its pleading s. See O ’Connell v. Hitt , 730 S.W .2d 16, 18 (Tex.App.--Corpus Christi 1987, no writ). Howeve r, if a party fails to identify the authority , the party is still entitled to attorney ’s fee s if he pleads fac ts which, if true, would entitle him to the relief soug ht. Id. The trial court did not specify its rea sons for awar ding atto rney ’s fees and Rodrigue z has not favor ed us with a brie f. We disag ree with Ba iley ’s t h eo ry t hat the only authority for the fee awa rd would be as sanctions under Texas Rule of Civ i l Procedur e 13 or Texas Civil Practice and Remedies Code Sections 9.011 o r 1 0

. 0 0 1

. His presumption ignor es Sections 106.002 and 156.005 of the Texas Family C o d e, both of which allow for the awa rd of attorney ’s fee s. See T E X .F A M .C O D E A N N . § 106.002 (West 2008); T E X .F A M .C O D E AN N . § 156.005 (West 2008). Under Section 106.002, the trial court has discretion to rende r judgme nt for attorney ’s fee s and costs. See T E X .F A M .C O D E A N N . § 106.002; Farish v. Farish , 921 S.W .2d 538, 546-47 (Tex.App.-- Be aumont 1996, no writ); W olters

v. W hite , 659 S.W .2d 885, 887-88 (Tex.App.--San An t o n i o 1 9 8 3, writ dism’d); see also In the Interest of

Pec ht , 874 S.W .2d 797 , 8 0 3 ( T e x. A p p . - - T e xa r k ana 1994, no writ)(holding that rea sonable attorney ’s fees m ay

be aw arde d as costs in any suit affe cting the par ent-c hild relationship, and the decision to awa

rd such fee s is within the discretion of the trial court). I n addition, Section 156.005 of t he Tex as Family Code authorizes an attorney fee awa rd i n modification proce eding s when the court be lieves the suit wa s frivolous. See T E X .F A M .C O D E AN N . § 156.005 (“I f the court finds that

a suit for modification is filed frivo l o u s l y o r is desig ned to hara ss a party , the court shall tax attorney ' s fee s as costs ag ainst the offe nding pa rty .”). We ove rrule I ssues One throug h Six

. IS TH E EVIDENCE S UF F ICIENT?As a pre re quisite to the rec overy of attorney ’s fee s for any underly ing cause of action, the party seeking fee s must prove the rea sonablene ss of the fee s. Bocque t v

. Herring , 972 S.W .2d 19, 21 (Tex. 1998). Re as o nablene ss of fee s must be supported by competent evidenc e. Pee ples v. Pee ples , 562 S.W .2d 503 (Tex.Civ.App.--San Antonio 1978, no writ). Her e, there wer e no finding s of fac t enter ed to support the awa rd of attorney ' s fee s and costs. We must there fore presume the trial
court made all finding s nece ssary to suppor t its order

. Holt Atherton Industries, Inc. v. Heine , 835 S.W .2d 80, 83 (Tex. 1992). Fa ctors considere d by the court when deter mining the amount of rea sonable fee s include: (1) the time and labor require d, novelty and difficulty of the question prese nted, and the skill require d; (2) the likelihood that acc eptanc e of employ ment prec luded other employ ment ; (3 ) t he fee customarily char g ed for

simil ar se rvice s; (4) the a mount involved and the re sults obtained; (5) the time limit ations imposed by the client or the circ umstances; (6) the nature and leng th of the profe ssional rela tionship wi t h the client; (7) the experience , reputa tion, and ability of the lawy er perf orming the servic es; and (8) whether the fe e is fixed or conting ent. Arthur Ande rson & Co. v. P er r y Equip. Corp., 945 S.W .2d 812, 818 (Tex. 1997). Ness-G arc ia did not testify , nor d i d s h e prese nt an aff

idavit, itemiz ed statements, exhibi ts, or any other o ffer of proof as to the

rea sonablene ss of her fee s. The rec ord is devoid of evidenc e rela ting to her experience , the time and labor involved, the difficulty of the task, her hourly rate s , ra t es cu s t omarily char g ed for simil ar service s, or her fee ag ree ment with Rodrigue z. Whil e a party need not offe r proof of all the fac tors ab o ve, Ness-G arc ia did not offe r proof under any of them. She ref ere nced a “ca se l ed ger ” presumably detailing her time spent prepa ring the motions and fee s incurre d. But it was not offe red

as an exhibi t, was not introduced into evidenc e and does not appea r in the rec ord. We have only her reque st for fe es of $518.10.Under these fac ts, we are not persua ded Rodrigue z provided more than a scintilla of evidenc e

as t o the reasonablene ss of t he amount of fees re q u es t ed. Finding leg ally insufficient evidence to support the awa

rd, we m u s t co n clude that the trial court abused its discretion. We sustain I ssue Seven and r ever se and r ender that Rodrigue z take nothing.

J uly 29, 2011 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.