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eBook details

• Title: Joan Hohlt Wich Et Al. v. Marian W. Fleming
• Author : Supreme Court of Texas No. C-1334
• Release Date : January 08, 1983
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 66 KB

Description

Robert M. Campbell, Justice ON MOTION FOR REHEARING Fleming correctly points out in her motion for rehearing that although the court of appeals' opinion in this cause does not address the issue of attorney's fees, the judgment of the court of appeals reversed the judgment of the trial court and remanded the entire cause. Therefore, she received a wholly favorable judgment in the court of appeals and properly could present her issue on attorney's fees for the first time in this Court on motion for rehearing. Taggart v. Taggart, 552 SW.2d 422 (Tex. 1977). Wich, the will contestant, filed a motion for summary judgment in the will contest. Fleming filed a response and cross-motion for summary judgment in which she requested attorney's fees. Affidavits were attached indicating she had incurred attorney's fees in the amount of $19,530.53. Wich filed a response in which she attacked the amount of the fees. The trial court rendered summary judgment for Wich and awarded Fleming $10,000 for attorney's fees We hold the determination of the disputed fact issue of attorney's fees was improper in a summary judgment proceeding. Coward v. Gateway Nat'l. Bank of Beaumont, 525 S.W.2d 857, 858 (Tex. 1975); Himes v. American Home Fence Company, 379 S.W.2d 290, 290-91 (Tex. 1964).

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