Opinion
No. 01-03-01103-CV
Opinion issued December 2, 2004.
On Appeal from the 212th District Court, Galveston County, Texas, Trial Court Cause No. 02CV0789.
Anthony P. Griffin, Anthony P. Griffin, Inc., and Debora L. Perkey, Galveston, TX, for Appellant.
Kent S. Richardson, Asst. Atty. Gen., Austin, TX and Kristofer S. Monson, Asst. Solicitor General, Office of the Atty. Gen., Solicitor Gen. Office (MC-059), Austin, TX, for State.
Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
MEMORANDUM OPINION
Appellants, Purushottam H. Patel and Manguben Purushottam Patel ("the Patels"), challenge the trial court's denial of their request for attorney's fees and costs in a nuisance suit brought against them by the State. In three issues, the Patels assert that the legal basis for the trial court's denial was erroneous.
Background
During the period of 1999 to 2002, the City of Dickinson police made numerous arrests for drug-related offenses and prostitution at the El Rancho Motel, a motel owned and operated by the Patels. Within a month of the last arrest, the Texas Attorney General's Office filed suit against the Patels for statutory common and public nuisance, seeking to enjoin them from operating the motel in a manner that allowed for these illegal activities. The State's "common nuisance" claim was authorized by provisions of Chapter 125, Subchapter A of the Civil Practice and Remedies Code. Tex. Civ. Prac. Rem. Code §§ 125.001-.004 (Vernon Supp. 2004-2005). The "public nuisance" claim was based on now-repealed provisions of Subchapter B of that same chapter. Act of May 17, 1985, 69th Leg., R.S. ch. 959, § 1, secs. 125.021-.022 (formerly at Tex. Civ. Prac. Rem. Code §§ 125.021-.022), 1985 Tex. Gen. Laws 3242, 3317, repealed by Act of June 1, 2003, 78th Leg., R.S. ch. 1202, § 14, 2003 Tex. Gen. Laws 3412, 3417.
The Patels denied the validity of the State's claims and requested attorney's fees and costs based on provisions of both the common and public nuisance statutes. Before the introduction of evidence at trial, the State non-suited its public nuisance claim. The common nuisance claim was tried to a jury, which found in the Patels' favor. Following trial, the Patels requested entry of judgment and moved for attorney's fees and costs. The State responded to the claims (1) by contending that the Patels were not "prevailing parties" because the public nuisance claim had been non-suited, (2) by asserting sovereign immunity, and (3) by disputing the amount of fees requested. The trial court denied the Patels request for attorney's fees and signed a judgment that provides, in relevant part, as follows:
The Court further denies Defendants' claims for attorney fees under both Subchapter A and Subchapter B of Chapter 125 of the Civil Practice and Remedies Code as no attorney fees are available to Defendants in this case.
The trial court's judgment did not address the issue of costs.
Attorney's Fees
Both the public and common nuisance statutes at issue in this case provide that "the court may award a prevailing party reasonable attorney's fees in addition to costs." Tex. Civ. Prac. Rem. Code § 125.003(d) (Vernon Supp. 2004-2005) (common nuisance); Act of May 17, 1985, 69th Leg., R.S. ch. 959, § 1, sec. 125.022(g) (formerly at Tex. Civ. Prac. Rem. Code § 125.022(g)), 1985 Tex. Gen. Laws 3242, 3317, repealed by Act of June 1, 2003, 78th Leg., R.S. ch. 1202, § 14, 2003 Tex. Gen. Laws 3412, 3417 (public nuisance). Courts interpreting similar statutory provisions have held that such permissive language does not require the court to award attorney's fees to the prevailing party but merely allows the court, in its discretion, to award attorney's fees. See, e.g., Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) (holding Declaratory Judgments Act's language that trial court may award prevailing party affords court measure of discretion in deciding whether to award attorney fees); Bell v. Katy Indep. Sch. Dist., 994 S.W.2d 862, 867 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (interpreting language of open meetings act that trial court may assess attorney's fees, as allowing, but not requiring, court to award fees). As such, the trial court's decision whether to grant attorney's fees and costs will not be reversed on appeal absent a clear showing of an abuse of discretion. See Bocquet, 972 S.W.2d at 21. A trial court abuses its discretion when it acts without regard to guiding legal principles or supporting evidence. See id.
On appeal, the Patels do not present their appellate complaint in terms of an abuse of discretion by the trial court. Instead, in their brief, the Patels "submit that as prevailing parties, the district court was authorized to award attorney's fees and costs under both Subchapter A and Subchapter B of Chapter 125 of the Civil Practice and Remedies Code, and therefore erred in ruling otherwise." In support of this argument, the Patels present three appellate issues in which they contend that they were prevailing parties with regard to both the common and public nuisance claims and that the State is not entitled to sovereign immunity with respect to attorney's fees and costs. Thus, the Patels' entire appellate argument presumes that the trial court denied their claim on the basis that they were not prevailing parties and/or that the State was immune from the claim.
Despite the Patels' contention, we do not know the basis of the trial court's ruling in this case. Significantly, it is the Patels' burden to bring a record showing that the trial court abused its discretion. See Simon v. York Crane Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987). We must presume that a trial court acted within its discretion unless the record discloses to the contrary. Navistar Int'l Corp. v. Valles, 740 S.W.2d 4, 6 (Tex.App. 1987, no writ). Here, the record reflects neither findings of fact nor a request for such findings with regard to the trial court's ruling on attorney's fees. At least two other appellate courts have held that, without findings of fact establishing the basis for the trial court's exercise of discretion, an appellate court cannot conclude as a matter of law that the trial court abused its discretion in declining to award attorney's fees. See Marion v. Davis, 106 S.W.3d 860, 868 (Tex.App. 2003, pet. denied); Unified Loans, Inc. v. Pettijohn, 955 S.W.2d 649, 654-55 (Tex.App. 1997, no pet.).
Based on an agreement between the parties, no reporter's record was filed on appeal. This opinion should not be read to penalize the Patels for such agreement. Even assuming the trial court orally stated the basis for the challenged ruling in this case, such comments would not constitute findings of fact and conclusions of law. See Sharp v. Hobart Corp., 957 S.W.2d 650, 654 (Tex.App. 1997, no pet.) (explaining that, even though trial court gave reason for denying attorney's fees verbally and in judgment, abuse of discretion not established because no findings of findings of fact were filed showing basis for trial court's exercise of discretion).
In short, the Patels fail to meet their appellate burden to demonstrate any abuse of discretion by the trial court. As stated, the statutory language at issue does not mandate an award of attorney's fees or costs, even to a prevailing party; rather, such determination is within the trial court's discretion. See Spiller v. Tex. Dept. Of Ins., 949 S.W.2d 548, 552 (Tex.App. 1997, writ denied) (indicating that even party who has prevailed on open meetings act claim not necessarily entitled to attorney's fees claim). Without knowing the basis for the trial court's denial, we cannot conclude as a matter of law that the trial court abused its discretion in declining to award attorney's fees and costs under the nuisance statutes. See Marion, 106 S.W.3d at 868-69 (concluding appellant failed to meet burden of presenting sufficient record to show that trial court abused its discretion in denying request for attorney's fees and costs); Pettijohn, 955 S.W.2d at 654-55 (holding no abuse of discretion can be found on appeal for failure to award attorney's fees when record does not reveal basis for denial in declaratory judgment case).
With regard to costs, the Patels do not assert that the trial court abused its discretion because it failed to comply with Rules of Civil Procedure 131 and 141. See Tex. R. Civ. P. 131 (providing that successful party to suit shall recover all costs incurred therein, except where otherwise provided); Tex. R. Civ. P. 141 (providing that court may otherwise adjudge costs for good cause, to be stated on record).
We overrule appellants' three issues.
Conclusion
We affirm the judgment of the trial court.