COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00399-CV

CONTINENTAL CASUALTY

INSURANCE COMPANY

APPELLANT

V.

MARY M. LAVENDER APPELLEE

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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION AND FACTUAL BACKGROUND

Appellee Mary M. Lavender became eligible for workers’ compensation 

death benefits when her husband suffered a compensable injury that resulted in 

his death while in the course and scope of his employment. Appellant 

Continental Casualty Insurance Company, after paying the death benefits for 

 

1See Tex. R. App. P. 47.4.
2

several years, filed proceedings with the worker’s compensation commission 

claiming that Mary had become ineligible to continue to receive death benefits 

because she had remarried by virtue of a common law marriage to Michael 

Brucia. Both the Contested Case Hearing Officer’s Decision and the subsequent 

decision of the Appeals Panel of the Workers’ Compensation Commission were 

adverse to Appellant. Appellant then sought judicial review, filing an original 

petition in district court. Mary filed a no-evidence motion for summary judgment 

in the district court, claiming that no evidence existed that she had agreed to be 

presently married to Brucia or that the couple held themselves out as husband 

and wife. The trial court granted Mary’s no-evidence motion for summary

judgment and awarded attorneys’ fees to her.

2 Appellant perfected this appeal.

Appellant raises eight points on appeal, three challenging the no-evidence 

summary judgment granted for Mary and five challenging the trial court’s award 

of attorneys’ fees to Mary. For the reasons set forth below, we will affirm the trial 

court’s judgment.

II. NO EVIDENCE OF FIRST ELEMENT OF COMMON LAW MARRIAGE

In Appellant’s first three points, it asserts that it produced summary 

judgment evidence raising a genuine issue of material fact on each of the three 

 

2See Tex. Lab. Code Ann. § 408.221(c) (West 2006) (making insurance 

carrier seeking judicial review liable for claimant’s attorney’s fees when claimant 

prevails on issue for which carrier sought judicial review).
3

elements of common law marriage.3 Proof of a common law marriage may be 

established by evidence that (1) the man and woman agree to be married, (2) 

they live together as husband and wife, and (3) they represent themselves to 

others as married. See Tex. Fam. Code Ann. § 2.401(a)(2) (West 2006).

Concerning the first element, a common law marriage cannot be founded 

on an agreement to be married in the future. See Walter v. Walter, 433 S.W.2d 

183, 191 (Tex. Civ. App.––Houston [1st Dist.] 1968, writ ref’d n.r.e.). The parties 

must intend to have a present, immediate, and permanent marital relationship. 

Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.––Houston [1st Dist.] 1991, 

writ denied). Mary and Bruscia both denied the existence of a present intent to 

be married. Cf., e.g., Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App.—Houston 

[1st Dist.] 2001, pet. denied) (holding that testimony of at least one party to an 

alleged common law marriage that couple presently intended to be married 

constituted more than a scintilla of evidence on first element of common law 

marriage). In support of its first point and as evidence of Mary’s and Brucia’s 

intent to be presently married, Appellant points only to the fact that Brucia gave 

Mary an engagement ring, the fact that Mary and Brucia agreed to be married at 

some date in the future, and the fact that Mary and Brucia cohabitated. We hold 

that as a matter of law none these facts nor any other summary judgment 

 

3Mary’s no-evidence motion for summary judgment challenged only the 

first and third elements of common law marriage. See Tex. R. Civ. P. 166a(i) 

(―The motion must state the elements as to which there is no evidence.‖).
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evidence in the record constitutes more than a scintilla of evidence of an intent 

by Mary and Brucia to be presently married. See Mills v. Mest, 94 S.W.3d 72, 

73–74 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (holding evidence 

legally insufficient to support first element of common law marriage).

Because no evidence exists on the first element of a common law 

marriage, the trial court did not err by granting Mary’s no-evidence motion for 

summary judgment. See Tex. R. Civ. P. 166a(i) (providing that trial court must 

grant a no-evidence summary judgment if the non-movant does not produce 

evidence raising a fact issue on a challenged element). We overrule Appellant’s 

first point. Having affirmed the trial court’s no-evidence summary judgment on 

this basis, we need not address Appellant’s second and third points claiming that 

more than a scintilla of evidence exists on the other two elements of common law 

marriage. See Hanson v. Greystar Dev. & Constr. L.P., 317 S.W.3d 850, 855 

(Tex. App.––Fort Worth 2010, pet. denied).

III. ATTORNEYS’ FEE AWARD IS PROPER

In its remaining five points, Appellant claims that the trial court’s award of 

$24,400 in attorneys’ fees to Mary’s attorneys was erroneous because the noevidence summary judgment was improper; the hourly rates for the fees awarded 

to Mary’s attorneys exceeded $150 per hour, which Appellant alleges is a 

statutory cap; the hourly rates for the fees awarded to Mary’s attorneys were not 

reasonable; the judgment ordered the attorneys’ fees paid directly to Mary’s 
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attorneys even though they are not parties to the lawsuit; and the fee award 

included time spent by Mary’s attorneys in pursuit of their fees.

Because we have held that the trial court correctly granted Mary’s noevidence summary judgment on the ground that no evidence exists on the first 

element of common law marriage––that Mary and Brucia agreed to be presently 

married––the trial court’s no-evidence summary judgment was not erroneous so 

that an award of attorneys’ fees was precluded. We overrule Appellant’s fourth 

point.

The trial court conducted an evidentiary hearing on Mary’s request for 

attorneys’ fees. The trial court heard testimony from Mary’s attorneys, examined 

Mary’s attorneys’ billing records that were admitted into evidence at the hearing, 

and examined a twelve-page affidavit from Mary’s counsel that was admitted into 

evidence at the hearing. The record reflects that Mary’s attorneys ultimately 

proved up attorneys’ fees in the amount of $53,075. This fee amount was based 

on 6.7 hours at the rate of $400 per hour for Mr. Barbknecht as senior attorney 

on the case, 164.6 hours at the rate of $275 per hour for associate Laci Dreher, 

and 34.2 hours at the rate of $150 per hour for paralegals. Following the 

evidentiary hearing on attorneys’ fees, the trial court sent the parties a letter 

ruling explaining that it was going to award $24,400 in attorneys’ fees and setting 

forth how the trial court had reached that number.

Ultimately, the trial court’s judgment provided, in pertinent part,
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The Court ORDERS and DECREES that Defendant Mary Lavender 

recover reasonable and necessary attorney’s fees in the amount of 

$24,400.00, adjudged against Plaintiff, Continental Casualty

Insurance Company, against whom execution may issue for 

collection of said costs. Therefore, Continental Casualty Insurance 

Company is ordered to pay attorney’s fees in the amount of 

$24,400.00, in a lump sum, plus five percent (5%) interest, within 

fifteen days (15) of the date this Judgment is signed, to The 

Barbknecht Firm, P.C., as the prevailing party may recover said 

attorney’s fees from Plaintiff, Continental Casualty Insurance 

Company, against whom execution may issue.

Under the Texas Workers’ Compensation Act, an insurance carrier that 

seeks judicial review of a final decision of the appeals panel regarding eligibility 

for death benefits is liable for reasonable and necessary attorney’s fees incurred 

by the claimant as a result of the insurance carrier’s appeal if the claimant 

prevails on an issue on which judicial review is sought by the insurance carrier. 

See Tex. Lab. Code Ann. § 408.221(c). Although the commissioner by rule sets 

guidelines for maximum attorney’s fees for specific services, attorney’s fees that 

an insurance carrier is liable for when it seeks judicial review of a final decision of 

the appeals panel regarding eligibility for death benefits and when the claimant 

prevails on an issue on which judicial review is sought are not subject to the rules 

adopted by the commissioner. See id. § 408.221(f) (providing that ―[t]he 

commissioner by rule shall provide guidelines for maximum attorney’s fees for 

specific services in accordance with this section‖); § 408.221(c) (providing that 

―[a]n award of attorney’s fees under this subsection is not subject to 

commissioner rules adopted under Subsection (f)‖). The commissioner’s 

guidelines for maximum attorney’s fees are applicable only to legal fees 
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generated by proceedings before the commission. 28 Tex. Admin. Code

§ 152.4(a) (2011) (Tex. Dep’t of Ins., Div. of Workers’ Comp., Guidelines for 

Legal Services Provided to Claimants and Carriers) (―The guidelines outlined in 

this rule shall be considered by the commission along with the factors, and 

maximum fee limitations . . . .‖) (emphasis added).

Appellant’s fifth point argues that the trial court erred by awarding Mary’s 

attorneys fees based on hourly rates in excess of $150 because the rules 

adopted by the commissioner pursuant to section 408.221(f) of the Texas Labor 

Code cap the hourly rate at $150. See id. § 152.4(d)(1). Contrary to Appellant’s 

position, the hourly rate fee caps set by the commisisoner are expressly not 

applicable to an award of attorney’s fees made pursuant to section 408.221,

subsection (c) of the Texas Labor Code. See Tex. Lab. Code Ann. § 408.221(c) 

(providing that an award of attorney’s fees under subsection (c) is not subject to 

commissioner rules adopted under subsection (f)). It is undisputed that the 

award of attorneys’ fees to Mary was made pursuant to labor code section 

408.221(c) because Appellant sought judicial review of a final decision of the 

appeals panel regarding Mary’s eligibility for death benefits and Mary prevailed 

on the issue on which judicial review was sought. Because Mary’s attorneys’ 

fees are not capped by the rules adopted by the commissioner, we overrule 

Appellant’s fifth point.

In its sixth point, Appellant argues that the hourly rates for the fees 

awarded to Mary’s attorneys were not reasonable hourly rates. Appellant bases 
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this argument on the hourly rate fee computation that the trial court utilized in its 

letter to the parties. Letter rulings, however, do not constitute formal findings of 

fact. Cherokee Water Co. v. Gregg Cnty. Appraisal Dist., 801 S.W.2d 872, 878 

(Tex. 1990); Castillo v. August, 248 S.W.3d 874, 880 (Tex. App.––El Paso 2008, 

no pet.). Because the trial court’s letter ruling in this case does not constitute 

formal findings of fact, no finding of fact exists on what hourly rate the trial court 

utilized in determining that reasonable attorneys’ fees in this case totaled 

$24,400. See Cherokee Water Co., 801 S.W.2d at 878. When a trial court 

makes no findings of fact or conclusions of law, we must assume it made all 

findings in support of its judgment. Pharo v. Chambers Cnty., 922 S.W.2d 945, 

948 (Tex. 1996).

Generally, the amount of money awarded as attorney’s fees rests within 

the sound discretion of the court. Ragsdale v. Progressive Voters League, 801 

S.W.2d 880, 881 (Tex. 1990). However, to determine whether the award 

constituted an abuse of discretion, the reviewing court must first determine 

whether the trial court had sufficient evidence before it upon which it could 

exercise its discretion. See Alford v. Johnston, 224 S.W.3d 291, 298 (Tex.

App.—El Paso 2005, pet. denied). 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 
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fee customarily charged in the locality for similar legal services; (4) the amount 

involved and the results obtained; (5) the time limitations 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). No requirement exists that evidence be introduced on of each 

of the Andersen factors. See Franco v. Lopez, 307 S.W.3d 551, 555 (Tex. 

App.—Dallas 2010, no pet.).

Through billing statements, affidavits, and live testimony, Mary’s attorneys 

proved up $53,075 in reasonable and necessary attorneys’ fees (6.7 hours by 

Mr. Barbknecht at $400 per hour, 164.6 hours by Ms. Dreher at $275 per hour, 

and 34.2 hours by paralegals at $150 per hour) for work performed from October 

2008 when Appellant filed its original petition for judicial review until July 30, 

2010, when the trial court signed the final judgment. The affidavit presented to 

the trial court details the work performed by Mary’s attorneys and explains why it 

was necessary based on the actions taken by Appellant in furtherance of 

Appellant’s claims. The trial court awarded attorneys’ fees in an amount 

constituting less than half of the attorneys’ fees proved up by Mary’s attorneys—

$24,400. Based on the evidence presented to the trial court, including evidence 

concerning the Andersen factors; the absence of findings of fact on the hourly 
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rate utilized by the trial court to reach its award of $24,400; and the assumption 

that the trial court made all findings in support of its award of $24,400; we cannot 

say that no evidence exists supporting the trial court’s award of $24,400 in 

attorneys’ fees to Mary’s attorneys or that the trial court abused its discretion by 

awarding this amount. We overrule Appellant’s sixth point.

In its seventh point, Appellant argues that the trial court erred ―because it 

awarded the fees directly to The Barbknecht Firm as the prevailing party, when 

The Barbknecht Firm was not a party to the DWC decision and is not a party to 

this lawsuit.‖ As set forth and quoted above, however, the trial court’s judgment 

awards reasonable and necessary attorneys’ fees to Mary Lavender and 

adjudged them against Appellant. The judgment then further orders that the 

attorneys’ fee award be paid directly to The Barbknecht Firm. Thus, the plain 

language of the judgment awards attorneys’ fees to Mary as the prevailing party, 

not to The Barbknecht Firm as the prevailing party, and makes the attorneys’

fees awarded to Mary as the prevailing party payable directly to her attorneys, 

The Barbkencht Firm. We overrule Appellant’s seventh point.

In its eighth point, Appellant argues that the trial court erred because it 

awarded attorneys’ fees to Mary’s attorneys for actions performed in pursuit of 

the attorneys’ fees. Because the trial court did not make findings of fact or 

conclusions of law concerning its attorneys’ fee award, to the extent, if any, that 

attorneys’ fees incurred in pursuit of a statutory right to attorneys’ fees are not 

recoverable, and because the trial court did not award the amount of attorneys’ 
11

fees requested and proved up by Mary’s attorneys but instead awarded less than 

half of that amount, we presume that the trial court did not include actions taken 

in pursuit of attorneys’ fees in its $24,400 fee award. See, e.g., Worford v. 

Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (holding that in absence of findings of 

fact and conclusions of law, appellate court must presume all facts in support of 

the judgment and must uphold judgment on any legal theory finding support in 

the record). Accordingly, we overrule Appellant’s eighth point.

IV. CONCLUSION

Having overruled Appellant’s first, fourth, fifth, sixth, seventh, and eighth 

points and having determined that we need not address Appellant’s second and 

third points, we affirm the trial court’s judgment.

SUE WALKER

JUSTICE

PANEL: WALKER and MCCOY, JJ.; and WILLIAM BRIGHAM (Senior Justice, 

Retired, Sitting by Assignment).

DELIVERED: June 9, 2011