## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07

- 13

- 00296

- CV

MICHAEL QUINN SULLIV AN, APPELLANT
V. SALEM ABRAHAM, APPEL LEE On Appeal from the 31st District Court Hemphill County, Texas Trial Court No. 6994, Honorable Steven Ray Emmert, Presiding

October 13 , 2014 

### OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Michael Quinn Sullivan (Sullivan) appeals from a final order or judgment dismissing, with prejudice, a defamation suit filed against him by Salem Abraham

. 1 Sullivan does not attack the dismissal of the suit. Rather, he questions the amount of attorney’s fees and expenses awarded him by the trial court and the latt er’s failure to

assess sanctions against Abraham. By awarding insufficient fees and expenses and by

1 We characterize the document from which the appeal is taken as a final order or judgment because it is entitled both an order of dismissal and final judgment.2

levying no sanctions, the trial court allegedly abused its discretion. We affirm in part and reverse in part. Background The appeal before us has nex us to that assigned Cause No. 07

- 12

- 00494

- CV, Abraham v. Greer, et al. We disposed of the latter cause via opinion rendered on July 25, 2014 , which opinion reversed the trial court’s dismissal of the cause. The Greer proceeding also involved a defamation suit initiated by Abraham. According to Abraham’s live pleading at bar, Sullivan told Greer of a political event attended by Abraham. Greer published an article about the event that alleged ly defam ed Abraham

. The trial court dismissed the Abraham/Greer suit under the authority of Texas Civil Practice and Remedies Code § 27.001 et seq. The appeal now before us also involves a dismiss al under § 27.001 et seq. Though no one questions the actual dismissal of the cause, they debate § 27.009 of the
same stat ute and whether it was accurately applied. Section 27.009 provides: (a) If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party: (1) court costs, reasonable attorney's fees, and other expenses incurred in def ending against the legal action as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in t his chapter.

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. § 27.009(a)(1) & (2) ( West Supp. 2014 ). We address each issue in the order mentioned in the statute.3

Attorney’s Fees and Expenses The pertinent standard of review is one of abused discretion. El Apple I, Ltd. v. Olivas , 370 S.W.3d 757, 761 (Tex. 2012) . That is, the ruling of the trial court must stand unless it fails to comport with controlling rules or principles or is otherwise arbitrary or unreasonable such as when it lacks sufficient evidentiary su pport

. Bocquet v. Herring , 972 S.W.2d 19, 21 (Tex. 1998 ); accord Ford Motor Co. v. Garcia , 363 S.W.3d 573, 578 (Tex. 2012) (stating th at a “ trial court abuses its discretion by ruling (1) arbitrarily, unreasonably, or without regard to guiding legal princ iples; or (2) without supporting evidence ”)

. To determine relevant controlling principles in a dispute involving attorney’s fees and expenses , we look both to t he statute under which they were sought and judicial
pr ecedent discussing it and like language in related statutes. As for the statute, § 27.009(a)(1) specifies that the trial court “shall award” fees and expenses to the moving party if the suit is dismissed. T EX

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. § 27.009(a) (1) (West Supp. 2014)

. Those two quoted wor ds connote a lack of discretion

. See Bocquet v. Herring , 972 S.W.2d at 21 (stating that “[s]tatutes providing that a party ‘may

recover , ’ ‘shall be awarded , ’ or ‘is entitled to ’ attorney fees are not discretionary ” ). That is , they evince that the trial c ourt has no discretion to withhold the relief encompassed in § 27.009 (a)(1) from a party that successfully moved for dismissal. Yet, we take care to recognize that more is said in the statute. Appended to the obligation to such relief is the modifier “ as justice and equity may require .” Id. § 27.009(a)(1). Because the legislature included that passage into the statute, it cannot be ignored. See In re Office of the AG , 422 S.W.3d 623, 629 (Tex.4

2013 (holding that each word of a statute must be given e ffect). Furthermore, the
p hrase likens to that found in the attorney’s fee provision of the Declaratory Judgment s Act. In the aforementioned a ct, the legislature provided that the trial court “ may award costs and reasonable and necessary attorney’s fees as are equitable and just.” T EX

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. § 37.009 (West 2005)

. Our Supreme Court had occasion to consider that language in Bocquet v. Herring and construed it as mandating a “multi

faceted review” implicating both “evidentiary and di scretionary matters.” Bocquet v. Herring , 972 S.W.2d at 21. One aspect of the review concerned the realization that by combining the verbiage, the legislature interjected both questions of fact and questions of law into the analysis. Th at is, whether th e fees were reasonable and necessary presented a question of fact for resolution by the fact finder. Id. The same could not be said of whether th e fees were “equitable and just , ” however. According to our Supreme Court, “ [m] atters of equity” and the “responsibility for just decisions” not only are “addressed to the trial court’s discretion” but also constitute “matters of law.” Id. Another aspect of the review concerns the interplay between those factual and legal questions. That interplay is exemplified by the Court’s observations that while “[u]nreasonable fees cannot be awarded, even if the court believed them just , ” the trial court “may conclude that it

. . . [ was] not equitable or just to award even reasonable and

necessa ry fees.” Id. This observation by the court is quite important for it relates to the authority vest ed in the trial court . The latter may not award more than what is reasonable but may grant less than that amount depending upon considerations of justice and equity relevant to the case. There is also another bit of importance implicitly5

arising from the observation , and it pertains to the burden imposed upon one attack ing , via appeal, the trial court’s decision to award a particular amount of fees. One cannot deny that an appellant has the obligation to establish error. Meacham v. Commission for Lawyer Discipline , 36 S.W.3d 612, 615 (Tex. App.

— Dallas 2000, pet. denied) . Should the appellant complain about what he deemed an insufficient amount of fees awarded under a statute mandating a reasonable fee subject to the considerations of justice and equity, he must do more than merely address the reasonableness of the sum a warded. Doing that only addresses one aspect of the authority recognized in Bocquet. Again, the latter opinion recognized the trial court’s authority to award less than what is reasonable at times. The appellant must also address whether concepts of equ ity and justice relevant to the particular dispute supported the decision or otherwise allowed for a reduction of fees

. Unless that is done successfully , he fail s to prove that the trial court abused the authority given it under the
statute. Simply put, in situations where the statute specifies that a fee must be both reasonable and just/equitable , a litigant wanting more must show that the award was unreasonable and that considerations of equity and justice did not warrant the reduction. We have such a statute in § 27.009 (a)(1) of the Civil Practice and Remedies Code. Like the provision involved in Bocquet ( i.e. , § 37.009 of the Civil Practice and Remedies Code), ours requires the award of “ court costs, reasonable attorney's fees , and other expenses

. . . as justice and equity may require

. ” T EX

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. § 27.009 (a)(1) (West Supp. 2014) . Given that language and the teachings of Bocquet , fees and expenses must be awarded . Yet, the sums awarded can be no6

more than what is reasonable but may be less than that in view of pertinent considerations of justice and equity. Here, the record contains the trial court’s July 26, 2013 letter ruling pertaining to attorney’s fees and expenses. Through the missive , it found “ that justice and equity necessitate

. . . [Sullivan’s] recovery of reasonable attorney's fees in the amount of $6,500.00 and costs in the amount of $1,500.00 .” 2 (Emphasis added). Furthermore, Sullivan argued that the trial court abused its discre tion in awarding only fees of $6 , 500 and expenses of $1 , 500

. He believed the fee s and expenses due were t he $67,290 and $4 , 382, respectively, he sought . Yet, in attempting to establish error, he merely discussed the unreasonableness of what was awarded an d the reasonableness of what he wanted. T hat tac k encompassed only one part of the multi

- faceted review imposed by both § 27.009 (a)(1) and Bocquet

. He said n othing about the considerations of “justice and equity” mentioned in the statute and whether they allowed the trial court to award less than what he wanted. Again, it may well be that the trial court gave him less than what was reasonable, but that alone does not constitute error. It was incumbent upon Sullivan to show that the redu ction was not warranted by justice or equity before it could be said that he established an instance of abused discretion. In so failing, Sullivan did not carry his burden on appeal. Yet, even had Sullivan addressed the elements of equity and justice, he failed to establish that the $67,290 he wanted was reasonable. T he lod estar method of calculating fee s was used to arrive at that sum . While that method of calculation requires the consideration of numerous indicia, the “star t ing point” is “the numbe r of

2 The word “costs” was changed to “expenses” in the final order of dismissal. Sullivan attacks on appeal the amount of expenses awarded, not costs.7

hours ‘reasonably expended on the litigation.’” El Apple I, Ltd. v . Olivas , 370 S.W.3d at 762

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. Satisfying that burden e ntails the offer of proof illustrating 1) the work done , 2) who did it, 3) their rate, 4) when the work was performed, and 5) the number of hours worked. Id. Additionally, w hen fees are sought for work done by multiple attorneys, the application should also indicate which attorney performed a particular task or category of tasks. Id. One does not satisfy t hat obligation by si mply proffer ing evidence of generalities. For instance, in Long v. Griffin , No. 11

- 1021, 2014 Tex. LEXIS 304 (Tex. April 25, 2014), the attorneys used the lodestar method to calculate the reasonable fee due them. And, though their affidavit referenced t he amount of time each spent on the case and provide d general descriptions of what was done, no mention was made of the time each spent on specific tasks. This rendered their application deficient , according to the Supreme Court

. Id. at *6

- 7. The affidavit Sullivan gave the trial court here ( i.e., “Second Supplemental Affidavit of Joseph M. Nixon”) similarly described the total hours performed by each attorney, the respective billing rate, and a general description of the work perfor med. Similarly missing was mention of the time each spent on the specific task descri bed. So, it too, like the affidavit in Long , provided the trial court “insufficient information

. . . to meaningful ly review the fee request.” Id. at *7. We also note that the rate s applied to the hours perform ed , according to the affiant, were those set by his firm’s “Executive Committee” and charged “ in its Houston, Dallas, San Antonio, and Austin offices, having in mind the education, experience and the prevai ling rates of comparable firms practicing litigation in those geographic areas.” Yet, the suit from which this appeal arose was not filed, prosecuted , or defended in any8

of those general areas. Abraham initiated and the parties litigated it in Hemphill C ounty, Texas. This is of import because the Texas Disciplinary Rules of Professional Conduct cite “the fee customarily charged in the locality for similar legal services” as the appropriate rate when calculating attorney’s fees. Tex. Disciplinary R ules Prof ’l Conduct R. 1 .04 (b) (3) , reprinted in Tex. Gov’t Code Ann. , tit. 2, subtit. G app. A ( West
2013 ) (T ex. State Bar R. art. X , § 9)

. ( E mphasis added). Sulliva n made no effort to establish through evidence that the hourly rate charged in Houston, Dallas, San Antonio, and Austin is or likens to the hourly rate “charged in the locality” or general area of the trial court in Hemphill County. In sum, Sulliv an failed to carry his burden to show that the trial court abused its discretion in awarding the fees and expenses it did. Thus, we overrule his first issue. Sanctions As for the matter of sanctions, § 27.009(a) provides that the trial court “shall

awar d to the moving party

. . . sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions . . . .” Id. § 27.009(a) (2) (West Supp. 2014)

. 3 T hrough use of the word “shall , ” the legislature evinced its intent to impose upon the trial court an obligation to assess sanctions. H elena Chem. Co. v. Wilkins , 47 S.W.3d 486, 493 (Tex. 2001) (stating that use of the word “shall” is generally construed as mand atory); accord Bocquet v. Herring , 972 S.W.3d at 20 (involving the assessment of attorney’s fees and stating that “[s]tatutes providing that a party ‘may recover , ’ ‘shall be awarded , ’ or ‘is entitled to

. . . ” connotes a non

- discretionary act). And thoug h the quantum or extent of

3 Missing from that language is reference to “justice and equity” or like terminology.9

the sanction is regulated by what the trial court “determines sufficient , ” the obligation remains to levy a sanction appropriate under the circumstances of the case. Here, the trial court denied Sullivan’s request for sanctions

. That is, none were awarded despite the statutory directive that it “shall” award a sanction deemed sufficient to deter particular conduct in the future. Refusing to perform a mandatory duty constitutes an abuse of discretion. See Jimenez v. Transweste rn Property Co. , 999 S.W.2d 1 25, 131 (Tex. App.

— Houston [1 4th Dist.] 1999, no pet.) ( involving sanctions imposed under Texas Rule of Civil Procedure 13 and holding that the failure o f the trial court to comply with the mandatory requirement of “particularity of findings ” in that rule as to specific acts or omissions constituted an abuse of discretion) . That was reversible

error. Accordingly, that portion of the order o f dismissal assessing attorney’s fees and
expenses is affirmed. That portion of the order failing to award sanctions is reversed

. The cause is remanded to the trial court for purposes of compliance with Texas Civil Practice and Remedies Code § 27.009(a)(2).

Brian Quinn Chief Justice