3. The 18.001 Affidavit
Appellee argues that the trial court was nevertheless required to award all fees sought. According to Appellee, because he proved his attorney's fees in an "18.001" affidavit, Appellants were precluded at the trial court level and now on appeal from challenging reasonableness. We disagree.
In civil cases not involving a suit on a sworn account, a party may prove that a service was reasonable and necessary
34 by submitting an affidavit in compliance with civil practice and remedies code section 18.001. Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (West 2015). If service and the substance of the affidavit comply with section 18.001's requisites, the affidavit "is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable."
Id. § 18.001(b). Section 18.001 serves to streamline proof of reasonableness and necessity and is especially useful in cases in which the damage elements of reasonableness and necessity are not contested.
See Haygood v. De Escabedo, 356 S.W.3d 390, 397 (Tex. 2011) (observing that section 18.001, which is "purely procedural," provides for the use of affidavits "to streamline proof of the reasonableness and necessity" of expenses but "does not establish that billed charges are reasonable and necessary").
We will set aside the question as to whether Appellee's attorney's affidavit complied with civil practice and remedies code section 18.001 and assume, without holding, that it did. With that assumption, the question becomes whether Appellants can challenge the reasonableness of the fees awarded on appeal.
To challenge the reasonableness of the amount charged for a service after a proper 18.001 affidavit has been filed, the opponent must file and serve a controverting affidavit in compliance with 18.001.
See Tex. Civ. Prac. & Rem. Code Ann. § 18.001(e)-(f). If the opponent's controverting affidavit is properly prepared and served, then the original 18.001 affidavit no longer suffices to prove that the amount charged was reasonable.
See id. § 18.001(b). Thus, by filing a proper controverting affidavit, the opposing party can force the party with the burden of proof to prove reasonableness through expert testimony.
Hong v. Bennett, 209 S.W.3d 795, 801 (Tex. App. — Fort Worth 2006, no pet.). Here, Appellants filed no controverting 18.001 affidavit.
[549 S.W.3d 827]
Appellee argued to the trial court that because Appellants did not challenge his 18.001 affidavit with a controverting affidavit, Appellants were precluded from challenging his attorney's fees evidence.
However, while an unchallenged 18.001 affidavit provides legally sufficient evidence at trial to support a finding that the amount charged was reasonable, the affidavit does not constitute conclusive proof.
Id. at 800;
see Atwood v. Pietrowicz, No. 02-10-00010-CV, 2010 WL 4261600, at *4 (Tex. App. — Fort Worth Oct. 28, 2010, no pet.) (mem. op.). In
Atwood, the appellants contended that their uncontroverted 18.001 affidavits entitled them to recover the amounts reflected therein as a matter of law. 2010 WL 4261600, at *3. But as we explained,
Section 18.001 affidavits do not establish that the [fees] were caused by the defendant's actions or that the plaintiffs are entitled to those [fees] as a matter of law. Sloan v. Molandes, 32 S.W.3d 745, 752 (Tex. App. — Beaumont 2000, no pet.); Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App. — Eastland 1995, no writ). It is an evidentiary statute allowing for the admissibility of affidavits that would otherwise be considered hearsay.
Id. at *4 (holding that the Atwoods were still required to demonstrate that the services were sought as a result of Pietrowicz's actions).
This rule does not change in the context of chapter 27 hearings. As the supreme court has instructed us, in the context of a chapter 27 dismissal hearing, the judge, as the factfinder, must determine whether the amount is "not excessive or extreme, but rather moderate or fair."
Sullivan, 488 S.W.3d at 299.
The gist of Appellants' argument on appeal is that because the charges in Appellee's 18.001 affidavit were excessive, as opposed to moderate or fair, the trial court erred by awarding the entire amount sought. For the reasons already set forth above, we agree. Consequently, we sustain this part of Appellants' second issue. On remand, the court should consider in its determination and award of reasonable attorney's fees, among other factors, Appellee's choice to file an answer before service of citation, his knowledge of the upcoming nonsuit, and his intent to use a dismissal in another lawsuit against him by the same plaintiffs.
See Rauhauser I, 508 S.W.3d at 382 & n.3.
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