author: PHYLIS J. SPEEDLIN, Justice.

text:
    Anita S. DONCASTER, Appellant, v. Gloria Rey HERNAIZ, Appellee.
    No. 04-04-00324-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 2, 2005.

      Armando Trevino, Laredo, for Appellant.
    Teresa A. Hunter, Jeffrey J. Czar, Law Office of Jeffrey Czar, Laredo, for Appel-lee.
    Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

Anita Doncaster appeals from a final judgment against her on a suit for collection of a debt. We affirm the judgment of the trial court.

Factual and Procedural Background

Gloria and Enrique Hernaiz were longtime customers of the Union National Bank in Laredo, Texas. As such, they had developed a relationship with Anita Don-caster, the bank representative responsible for their accounts. Over the course of their almost 30-year relationship with Doncaster, Mr. and Mrs. Hernaiz authorized three loans to be made to or through her, although the characterization of these transactions is disputed by the parties.

Two of these transactions are directly relevant to the underlying lawsuit and occurred in March and July 1994. Doncaster maintains that she solicited $70,000 in March and another $30,000 in July from Mr. and Mrs. Hernaiz on behalf of a third person, Carlos Garza, as an investment opportunity for Mr. and Mrs. Hernaiz. It is undisputed that the money was not repaid. Doncaster then signed a “Carta de Compromiso” in February 1998. That document provides:

I, Anita S. Doncaster, ... obligate myself to pay to Mrs. Gloria Rey de Her-naiz, of Mexico, D.F. the sum of $100,000 by April 30, 1998 or before that date with an interest rate of 7% when due. This amount shall be paid to cover the present debt of Mr. Chale Garza d/b/a Chale Garza Investments, Inc. to Mrs. Gloria Rey Hernaiz. To date Mrs. Gloria Rey Hernaiz has a promissory note from Mr. Chale Garza, which is for the same amount. When I pay this promissory note I will receive said document (original). Signed Anita S. Doncaster. Accepted: Signed Gloria Rey Hernaiz.

Again, the money was not repaid. Gloria Hernaiz eventually presented Doncaster with a demand letter. After receiving no response to her demand, Hernaiz filed suit on the debt in March 2002.

On November 14, 2003, Hernaiz filed a traditional motion for summary judgment. In support of her motion, Hernaiz filed six exhibits: (1) a copy of the Carta de Com-promiso signed by Doncaster and Hernaiz on February 12, 1998, in Spanish with an English translation; (2) an affidavit from Hernaiz outlining the history of the transactions with Doncaster; (3) an affidavit from Luz Josefina Hernaiz Pardave, executrix of the estate of Enrique Hernaiz, outlining the history of the parties’ relationship; (4) a transcript of the deposition of Doncaster; (5) an affidavit from Jeffrey Czar on the issue of attorney’s fees; and (6) a second affidavit from Luz Pardave on the issue of Doncaster’s failure to pay the debt established in the Carta de Compro-miso.

Doncaster filed objections and a response to Hernaiz’s motion for summary judgment, as well as a cross-motion for a no evidence summary judgment. In support of both her response and her motion for summary judgment, Doncaster filed four exhibits: (1) her affidavit describing her relationship and the transactions with Mr. and Mrs. Hernaiz; (2) a translation of an earlier 1992 promissory note to Enrique Hernaiz signed by Doncaster with an accompanying affidavit of the translator; (3) a translation of the 1998 Carta de Compro-miso with an accompanying affidavit of the translator; and (4) a translation of a 1999 document signed by Gloria Hernaiz and Doncaster with an accompanying affidavit of the translator.

Hernaiz then supplemented her motion for summary judgment with five additional exhibits: (1) an affidavit from the court interpreter who had translated the Carta de Compromiso; (2) a transcript of the deposition of Carlos Garza; (3) a copy of the 1992 promissory note from Doncaster to Enrique Hernaiz with an accompanying translation and affidavit of the translator; (4) a copy of the 1999 document signed by Gloria Hernaiz and Doncaster with an accompanying translation and affidavit of the translator; and (5) a copy of a February 1998 check from Doncaster payable to Gloria Hernaiz in the amount of $30,000.

An initial hearing was held on January 21, 2004, at which time the trial court postponed deciding Hernaiz’s motion for summary judgment for one week to give Doncaster time to respond to the recent supplements to Hernaiz’s motion. On January 28, 2004, the court heard argument on Hernaiz’s motion for summary judgment. The trial judge made only one explicit ruling on Doncaster’s objections to Hernaiz’s summary judgment evidence before granting a partial summary judgment in favor of Hernaiz on the debt. A bench trial was held on the issue of attorney’s fees on February 6, 2004. The final judgment signed on February 11, 2004 awarded $123,667 to Hernaiz as principal and interest on the debt and $35,800 in attorney’s fees, plus additional attorney’s fees in the event of appeal. This appeal was timely filed by Doncaster.

Hernaiz’s Summary Judgment

Summary Judgment Evidence

In her fourth issue on appeal, Doncaster contends that the summary judgment was not supported by any competent, admissible evidence, and re-asserts her objections to the summary judgment evidence. Summary judgment evidence must be admissible under the rules of evidence. United Blood Serv. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997); see Tex.R. Civ. P. 166a (f). The admission or exclusion of evidence, however, is generally a matter within the trial court’s discretion and we review the trial court’s ruling for an abuse of discretion. Owens-Coming Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). To warrant reversal, the appellant must show that the trial court’s erroneous admission or exclusion of evidence was harmful — that it was calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.App. P. 44.1; Owens-Coming Fiberglas Corp., 972 S.W.2d at 43. Error on questions of evidence is generally not reversible unless the appellant can show that the whole case turns on the particular evidence admitted or excluded. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001); Atl. Mut. Ins. Co. v. Middleman, 661 S.W.2d 182,185 (Tex.App.-San Antonio 1983, writ ref d n.r.e.).

At the trial court level, Doncaster objected to the admission of the Carta de Compromiso on the basis that Hernaiz failed to comply with the rules of evidence for admission of a foreign language document; specifically, Doncaster asserts that a translator’s affidavit was not submitted with the document at least 45 days before the hearing. Tex.R. Evid. 1009. Rule 1009 provides that a translation of a foreign language document is admissible upon the affidavit of a qualified translator when the affidavit, translation, and foreign language document are served on all parties 45 days prior to trial. See Tex.R. Evid. 1009(a). It is undisputed by the parties that Hernaiz did file a copy of the Carta de Compromiso with a translation with her initial summary judgment motion, but failed to attach the translator’s affidavit. Later, in response to Doncaster’s objections, Hernaiz supplemented her motion with an affidavit from the translator as required by Rule 1009. Because of Her-naiz’s late supplementation, the trial court provided Doncaster a one-week continuance before conducting the summary judgment hearing. Rule 1009 provides the court with authority to lengthen or shorten the time limits set by the rule. See Tex.R. Evid. 1009(f). We hold that any error in failing to initially provide the affidavit of the translator was cured by its inclusion in the supplement, and it was therefore within the court’s discretion to admit and consider the Carta de Compro-miso. In addition, Rule 1009 requires the party objecting to the accuracy of a translation to point out the specific inaccuracies in the translation and offer what the objecting party contends is a fair and accurate translation. Tex.R. Evid. 1009(b). Doncaster did not point out any specific inaccuracy in the translation originally offered by Hernaiz and, in fact, submitted her own translation of the document which is not substantially different from that offered by Hernaiz. Because Doncaster submitted her own translation of the same document, there was nothing to prevent the court from referring to this version in evaluating the summary judgment evidence. The trial court did not abuse its discretion in overruling Doncaster’s,objection and admitting the Carta de Compro-miso.

Doncaster raises several other objections about the admissibility of Hernaiz’s summary judgment evidence, including that the affidavits contained hearsay and conclusory statements, and faded to comply with Texas Rule of Civil Procedure 166a. The record, however, reveals no trial court ruling on any of these objections. As a general rule, a complaint is preserved for appellate review only if the record establishes the complaint was made known to the trial court in a timely manner, and the trial court ruled on the complaint. See Tex.R.App. P. 33.1(a); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex.App.-San Antonio 2000, no, pet.). Here, Doncaster failed to obtain a ruling from the trial court on her objections, and has thus waived them. Well Solutions, Inc., 32 S.W.3d at 316. We overrule Don-caster’s fourth issue.

In her first issue, Doncaster broadly maintains Hernaiz failed to establish, as a matter of law, her entitlement to summary judgment on the debt action. We review a summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Valores Corporativos, S.A. de C.V. v. McLane Co., Inc., 945 S.W.2d 160, 162 (Tex.App.-San Antonio 1997, writ denied). We uphold a traditional summary judgment only if the summary judgment record establishes the absence of a genuine issue of material fact, and that the movant is entitled to summary judgment on a ground set forth in the motion. Well Solutions, Inc., 32 S.W.3d at 316.

To succeed on her traditional motion for summary judgment in this suit oh an unpaid debt, Hernaiz had the burden to establish (1) the existence of the debt or note; (2) that Doncaster had signed the note; (3) that Hernaiz was the holder of the note; and (4) that a balance was due and owing under the note. See Hudspeth v. Investor Collection Serv. Ltd. P’ship, 985 S.W.2d 477, 479 (Tex.App.-San Antonio 1998, no pet.). The parties do not dispute elements two and three — that Doncaster signed the note and that Hernaiz was the holder of the note. Doncaster argues instead that the Carta de Compromiso is ambiguous because it fails to specify the amount of indebtedness and fails to establish that Doncaster is responsible for the debt. A contract is ambiguous, “only when the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.” Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951). We do not agree that the Carta de Compromiso is ambiguous.

The Carta de Compromiso states that the $100,000 pledged by Doncaster is “to cover the present debt of Mr. Chale Garza” and that, “Mrs. Gloria Rey Hernaiz has a promissory note from Mr. Chale Garza, which is for the same amount.” We conclude this language is a clear and unambiguous reference to both the amount of the antecedent debt and the existence of the debt. In the Matter of Vineyard Bay Development Co., Inc., 132 F.3d 269, 271 (5th Cir.1998) (holding that the amount of a debt need not be specified in an acknowledgment as long as it is susceptible of ready ascertainment); Stine v. Stewart, 80 S.W.3d 586, 590 (Tex.2002) (amount of obligation must be susceptible of ready ascertainment).

The note is equally clear and unambiguous in its identification of Doncaster as the obligor. The Carta de Compromiso begins by stating, “I, Anita S. Doncaster ... obligate myself to pay....” This language is not readily susceptible to any alternative interpretation regarding the intended obli-gor. See Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex.1983) (a contract is ambiguous when its meaning is reasonably susceptible to more than one meaning). We perceive no ambiguity in the language of the note; therefore, the introduction of extrinsic evidence to vary the legal effect of the note is precluded. See Universal C.I.T. Credit Corp., 243 S.W.2d at 157 (unambiguous contract will be enforced as written and parol evidence will not be received to create ambiguity or give a meaning different from that which the language imports); see also Hartford Ins. Co. v. Commerce & Indus. Ins. Co., 864 S.W.2d 648, 650 (Tex. App.-Houston [1st Dist.] 1993, writ denied); Cross v. Ashley Plumbing Co., Inc., No. 04-97-00018-CV, 1997 WL 759418, at *2 (Tex.App.-San Antonio Dec.10, 1997, no pet.) (not designated for publication). We hold, based upon the summary judgment evidence, that there were no genuine issues of material fact as to any essential element of Hernaiz’s claim against Don-caster on the 1998 Carta de Compromiso; therefore, Hernaiz met her initial burden of proof.

Affirmative Defenses

Doncaster also argues that the summary judgment must be reversed based on lach-es, lack of consideration, and estoppel. We disagree. Laches, lack of consideration, and estoppel are all affirmative defenses to a suit on a note. Tex.R. Civ. P. 94. Once Hernaiz met her burden of proof by establishing each element of her suit on the debt, the burden shifted to Doncaster to present evidence as to each and every element of an affirmative defense in order to prevent summary judgment. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 774 (Tex.1995). We will examine each asserted affirmative defense in turn.

Laches is an affirmative defense comprised of two essential elements: (1) a party’s unreasonable delay in asserting a legal or equitable right; and (2) a good faith and detrimental change of position by another because of the delay. Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 80 (Tex.1989); Green v. Parrack, 974 S.W.2d 200, 203-04 (Tex.App.San Antonio 1998, no pet.). As the party asserting the defense, Doncaster had the burden of proving both elements. Tex.R. Civ. P. 94; Green, 974 S.W.2d at 204. Our review of the evidence shows Doncaster failed to present any evidence on either element of unreasonable delay or detrimental change of position by Doncaster because of the timing of the suit. Doncaster failed to establish laches as an affirmative defense to summary judgment.

The lack of consideration is also an affirmative defense. The existence of a written contract, however, presumes consideration for its execution. Hooper v. Mercantile Bank & Trust, 762 S.W.2d 383, 386-87 (Tex.App.-San Antonio 1988, no pet.); Hargis v. Radio Corp. of Am., 539 S.W.2d 230, 232 (Tex.Civ.App.-Austin 1976, no writ). The party alleging want of consideration therefore has the burden of proof to rebut the presumption. Tex.R. Civ. P. 94; see Sudduth v. Commonwealth County Mut. Ins. Co., 454 S.W.2d 196, 198 (Tex.1970). Again, a review of the summary judgment evidence shows that Don-caster failed to present any evidence to establish a lack of consideration for the execution of the Carta de Compromiso. The summary judgment evidence submitted by Hernaiz reveals that on the same day that Doncaster signed the Carta de Compromiso, Gloria Hernaiz accepted $30,000 from Doncaster as payment in full of a prior $45,000 debt. In addition, the evidence shows Hernaiz did not notify Doncaster’s employer bank of the current or prior debt or take any legal action against Doncaster prior to 1998 when the Carta de Compromiso was signed. In addition to the presumption of consideration raised by the written contract, the evidence establishes that Doncaster in fact did receive consideration for execution of the note, both in the form of a benefit to her and forbearance by Hernaiz. Doncaster failed to establish lack of consideration as an affirmative defense to summary judgment. See Copeland v. Alsobrook, 3 S.W.3d 598, 606 (Tex.App.-San Antonio 1999, pet. denied).

Finally, equitable estoppel is an affirmative defense that is established when “(1) a false representation or concealment of material facts; (2) is made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted upon; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations.” Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex. 1998); City of Fredericksburg v. Bopp, 126 S.W.3d 218, 221 (Tex.App.-San Antonio 2003, no pet.). Doncaster had the burden to present evidence on each essential element of estoppel. Concord Oil Co. v. Aleo Oil & Gas Corp., 387 S.W.2d 635, 639 (Tex.1965); Osborne v. Mutzig, No. 04-02-00554-CV, 2003 WL 21010609, at *5 (Tex. App.-San Antonio May 7, 2003, no pet.). Doncaster offered no evidence in support of this defense, nor does she direct us to any other summary judgment evidence which even suggests there was any knowing misrepresentation or concealment of facts by Mr. or Mrs. Hernaiz. In addition, Doncaster does not provide any evidence of her detrimental reliance on any representation made to her by Mr. or Mrs. Hernaiz. Doncaster failed to establish the affirmative defense of estoppel.

Doncaster further contends summary judgment was improperly granted under the doctrine of proportionate responsibility. The doctrine of proportionate responsibility is inapplicable because it applies only to causes of action based in tort. Tex. Crv. PRAC. & Rem.Code Ann. § 33.002(a) (Vernon Supp.2004-05). Here, the underlying suit lies in contract, not in tort; therefore, the doctrine is not applicable. Stine, 80 S.W.3d at 592.

Finally, Doncaster argues that the loans that form the basis of this suit were actually made and became due in 1994; therefore, Hernaiz’s claim is barred by the four-year statute of limitations. In support of this position, Doncaster asserts that the 1998 Carta de Compromiso cannot serve as an acknowledgment of the antecedent debt sufficient to restart the running of the statute of limitations. We disagree. A suit on a debt is subject to a four year statute of limitations. Tex. Civ. PRAC. & Rem.Code Ann. § 16.004(a)(3) (Vernon 2002); see also Stine, 80 S.W.3d at 592 (four year statute of limitations also applies to acknowledgments of debt which are new contractual promises to pay). However, Civil Practice & Remedies Code § 16.065 allows for a new promise to pay an old debt. The provision states, “[a]n acknowledgment of the justness of a claim that appears to be barred by limitations is not admissible ... to defeat the law of limitations if made after the time that the claim is due unless the acknowledgment is in writing and is signed by the party to be charged.” Tex. Civ. Prac. & Rem.Code § 16.065 (Vernon 1997). Texas courts have consistently interpreted § 16.065 as requiring that such an agreement (1) be in writing and signed by the party to be charged; (2) contain an unequivocal acknowledgment of the justness or the existence of the particular obligation; and (3) refer to the obligation and express a willingness to honor it. Stine, 80 S.W.3d at 591; Neel v. Killam Oil Co., Ltd., 88 S.W.3d 334, 342 (Tex.App.-San Antonio 2002, pet. denied). The effect of such an acknowledgment is to create a new promise to pay the old debt. Neel, 88 S.W.3d at 343. Whether a written instrument sufficiently acknowledges a debt barred by limitations is a question of law. Bright & Co. v. Holbein Family Mineral Trust, 995 S.W.2d 742, 745 (Tex.App.-San Antonio 1999, pet. denied).

The 1998 Carta de Compromiso refers to an existing debt, identifies the amount of the debt, and refers to a note as evidence of that debt. It contains a clear and unequivocal promise to pay the debt by Doncaster and is signed by her. We hold the Carta de Compromiso meets the requirements of § 16.065 for an acknowledgment as a matter of law. The effect of this acknowledgment is to restart the running of the statute of limitations as of the date the debt became due under the terms of the acknowledgment. Stine, 80 S.W.3d at 592 (breach of contract claim accrues when contract is breached by failure to pay on date promised). The Carta de Compromi-so was signed on February 12, 1998, and the debt became due under that document on April 30, 1998. This suit was filed on March 13, 2002, within four years of the date the acknowledged debt was due. Therefore, Hernaiz’s suit is not barred by the statute of limitations. We overrule Doncaster’s first issue on appeal.

JURISDICTION

In her third issue, Doncaster claims the trial court’s judgment should be reversed because the trial court lacked subject matter jurisdiction to resolve the case. The basis of Doncaster’s claim is that neither Mrs. Hernaiz nor the executrix of her husband’s estate was the proper party to bring suit on behalf of Mr. Hernaiz, and he made the initial 1994 loans to Garza. Although the initial lawsuit was brought by both Mrs. Hernaiz and the executrix of Mr. Hernaiz’s estate, prior to the trial court’s partial summary judgment order, all of the claims by Mr. Hernaiz’s estate against Doncaster had been non-suited. Therefore, at the time the partial summary judgment was granted, the only remaining claims were those of Mrs. Hernaiz in her individual capacity against Doncaster. Doncaster raises no issue regarding the jurisdiction of the court to hear Mrs. Her-naiz’s claims; therefore, her third issue is overruled.

Denial of Doncaster’s Motion for Summary Judgment

In her fifth issue, Doncaster asserts that the trial court erred in failing to grant her own no evidence motion for summary judgment because Hernaiz failed to file any written response. See Tex.R. Civ. P. 166a (i) (stating, “[t]he court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.”). Doncaster’s no evidence motion for summary judgment was set for hearing on February 21, 2004. Partial summary judgment in favor of Hernaiz was granted on January 28, 2004; a bench trial on all remaining issues was held on February 6, 2004; and a final judgment was signed on February 11, 2004 — all prior to the setting on Doncaster’s motion. Because the trial court effectively denied Doncaster’s motion in its final judgment, Hernaiz was not thereafter required to file any written response to Doncaster’s motion. Issue five is overruled.

Attorney’s Fees

In her second issue, Doncaster contends that Hernaiz failed to prove she was entitled to attorney’s fees and that the findings of fact and conclusions of law do not support the fees awarded. Specifically, Doncaster maintains that there is no proof that the number of hours awarded were necessary, the fees are not properly segregated, and the total fees awarded are excessive.

As a general rule, the party seeking to recover attorney’s fees carries the burden of proof. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). The trial court may award those fees that are “reasonable and necessary” for the prosecution of the suit, requiring the plaintiff to show that the fees were incurred while suing the defendant on a claim which allows recovery of such fees. Hartmann v. Solbrig, 12 S.W.3d 587, 594 (Tex.App.-San Antonio 2000, pet. denied). When a case has involved multiple defendants and one or more defendants are no longer in the suit, the plaintiff must segregate the fees owed by the remaining defendant. Stewart Title Guar. Co., 822 S.W.2d at 10-11; Hartmann, 12 S.W.3d at 594. An award of attorney’s fees is reviewed under an abuse of discretion standard, subject to the requirement that any fees awarded be reasonable and necessary, which we review for sufficiency of the evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). The trial court determines the reasonableness of attorney’s fees by referring to the factors provided in Rule 1.04 of the Texas Disciplinary Rules of Professional Conduct. See Tex. DISCIPLINARY R. PROf’l Conduct 1.04(b), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (Vernon 1998) (factors include, among others, time and labor required, difficulty of the questions involved and skill necessary to perform the services, fee customarily charged in the locality, and any time limitations imposed by the circumstances); Goodyear Dunlop Tires N. Am., Ltd. v. Gamez, 151 S.W.3d 574, 579 (Tex.App.-San Antonio, 2004, no pet. h.). A trial court abuses its discretion if there is no evidence or insufficient evidence to support the fee award. Bocquet, 972 S.W.2d at 21; Ga-mez, at 579. In reviewing a fee award, the appellate court may draw upon the common knowledge of the justices and their experience in support of the fee awarded. Gamez, at 579.

After granting a partial summary judgment on the underlying cause of action, the trial judge set a trial on the merits on the issue of attorney’s fees. At trial, two attorneys for. Hernaiz, Hunter and Czar, testified. Czar testified that he began his representation of Hernaiz in August 2001. His activity on the case before filing suit included meeting with the client, researching the facts- and the law involved in a potential claim, and presenting a demand letter to Doncaster. After filing suit, Czar conducted discovery and filed motions for disclosure, motions for production, and interrogatories. Czar testified that he spent a total of' 129 hours on the case, specifically related to the claims against Doncaster. Czar further testified that the deposition of one of the non-suited defendants, Carlos Garza, involved facts that were so intertwined with the issues involving Doncaster that they could not be readily segregated. Hunter testified she had spent a total of 50 hours on the case, involving depositions, motions for sanctions hearings, preparation of the motion for summary judgment and responses to Don-caster’s motion for summary judgment, research, and time in court on the summary judgment motion and the bench trial on attorney’s fees. Czar and Hunter each testified that the estimated hours referred exclusively to those directly involving the claims against Doncaster.

Doncaster cross-examined the attorneys, but did not offer any additional controverting evidence. We hold the evidence presented at trial is sufficient to support a finding that the award of fees was reasonable and necessary. A total of 179 hours devoted to this case over the course of two and a half years is not an unreasonable number of hours for the issues and tasks involved in this litigation. We therefore decline to hold the trial court abused its discretion in awarding the fees. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881-82 (Tex. 1990). In addition, we conclude that the testimony regarding the segregation of fees is sufficient to support the award against Doncaster. See Hachar v. Hachar, 153 S.W.3d 138, 143 (Tex.App.-San Antonio, 2004, no pet.); Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 565 n. 7 (Tex.App.-Texarkana 2003, pet. denied) (rough percent of amount attributable to each claim is sufficient segregation); Leon Ltd. v. Albuquerque Commons P’ship, 862 S.W.2d 693, 709 (Tex.App.-El Paso 1993, no pet.) (testimony regarding percentage attributable to various claims is sufficient segregation). Czar testified that hours spent on the deposition of defendant Garza were not capable of segregation as the facts involved in that deposition were intertwined with those involving Doncaster. “A recognized exception to [the] duty to segregate arises when the attorney fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts.” Hartmann, 12 S.W.3d at 594; Flint & Assoc. v. Intercont’l Pipe & Steel, Inc., 739 S.W.2d 622, 624-25 (Tex. App.-Dallas 1987, writ denied). Issue two is overruled.

In her sixth and final issue on appeal, Doncaster contends that the trial court’s findings of fact and conclusions of law do not support the award of attorney’s fees and that the court erred in failing to make additional findings of fact and conclusions of law as requested by Doncaster. Findings of fact may be requested “[i]n any case tried in the district or county court without a jury.” Tex.R. Crv. P. 296. After findings of fact have been filed by the court, a party can request additional findings of fact or conclusions of law if the court omitted a finding on a material element or made an error in a finding. Tex.R. Crv P. 298; see also Alvarez v. Espinoza, 844 S.W.2d 238, 241-42 (Tex. App.-San Antonio 1992, writ dism’d w.o.j.) (requesting party is required to submit specific proposed findings — a bare request is not sufficient). The trial court is required to make additional findings only on ultimate issues; additional findings that merely relate to an evidentiary point are improper. Levine v. Maverick County Water Control & Improvement Disk, 884 S.W.2d 790, 796 (Tex.App.-San Antonio 1994, writ denied); see also Kirby v. Chapman, 917 S.W.2d 902, 909-10 (Tex.App.Fort Worth 1996, no writ) (court may properly refuse to make additional findings where they are already adequately covered by original findings, are not material and necessary, or if they will not result in a different judgment). The party cannot request findings contrary to the court’s judgment. ASAI v. Vaneo Insulation Abatement, Inc., 932 S.W.2d 118, 121 (Tex.App.-E1 Paso 1996, no writ).

To obtain a reversal, the appellant must show from the record that the trial court’s refusal to file additional findings of fact and conclusions of law as requested was reasonably calculated to cause and did cause rendition of an improper judgment. Tamez v. Tamez, 822 S.W.2d 688 (Tex.App.-Corpus Christi 1991, writ denied). If the refusal of the trial court to make additional findings does not prevent an adequate presentation on appeal, there is no reversible error. ASAI, 932 S.W.2d at 122. The issue is whether the circumstances are such that the appellant is forced to guess at the reasons for the trial court’s decision. Goggins v. Leo, 849 S.W.2d 373, 379 (Tex.App.-Houston [14th Dist.] 1993, no writ).

We conclude the court’s original findings on the award of attorney’s fees do not omit or contain an error on a material element and sufficiently reflect the evidence. We cannot agree that Doncaster was forced to guess at the reasons for the trial court’s judgment. Doncaster has failed to show from the record how the trial court’s failure to make the requested additional findings was reasonably calculated to cause and did cause the rendition of an improper judgment. Therefore, we overrule Doncaster’s sixth issue on appeal.

Conclusion

Because we conclude that Hernaiz met her burden of presenting competent summary judgment evidence establishing that there were no genuine issues of material fact on any essential elements of her claim, and Doncaster failed to raise an issue on each and every element of any affirmative defense sufficient to prevent summary judgment, we affirm the trial court’s grant of partial summary judgment in favor of Hernaiz. In addition, we hold the evidence presented at trial regarding the amount and segregation of reasonable and necessary attorney’s fees is sufficient to support the award of attorney’s fees against Doncaster. For the foregoing reasons, the judgment of the trial court is affirmed.

      . It is undisputed that recovery of attorney’s fees is available in this case under Civil Practice and Remedies Code § 38.001(8). Tex. Civ. Prac. & Rem.Code Ann. § 38.001(8) (Vernon 1997) (providing for recovery of attorney’s fees from an individual in a claim based on an oral or written contract).

      . Doncaster requested seven additional findings including: (1) whether Hemaiz’s claim for attorney’s fees had been filed with the motion for summary judgment; (2) whether Doncaster had filed written objections to Her-naiz’s summary judgment evidence and the court’s rulings on the objections; (3) whether the claim for attorney’s fees had been decided at the summary judgment hearing or severed and whether Doncaster had objected to the separate hearing on attorney’s fees; (4) when the actions against all other defendants had been non-suited; (5) whether Hemaiz’s written contract for attorney’s fees was admitted in evidence or supported by other evidence; (6) whether a timely demand for jury trial had been made before the hearing on attorney’s fees and whether the non-jury trial was held over Doncaster’s objections; and (7) what record evidence supports the segregation of attorney’s fees involving Doncaster from those involving all. other defendants.


source: Caselaw Access Project

author: ALMA L. LÓPEZ, Chief Justice.

license: Public Domain

text:
    Charles L. PATILLO and Wanda J. Patillo, Appellants, v. CITY OF SAN ANTONIO, acting by and through the SAN ANTONIO WATER SYSTEM, Appellee.
    No. 04-04-00322-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 2, 2005.

      Jerry N. Dennard, San Antonio, for appellants.
    Paul D. Barkhurst, Joe R. Hinojosa, Oppenheimer Blend Harrison & Tate, Inc., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

Charles L. Patillo and Wanda J. Patillo appeal the trial court’s order granting summary judgment in favor of the City of San Antonio acting by and through the San Antonio Water System (“SAWS”). The trial court’s order confirms the award of the special commissioners in a condemnation action. The Patillos contend that the trial court erred in granting summary-judgment because, as a matter of law, the access to the Patillos’ remainder property was substantially and materially impaired. We affirm the trial court’s judgment.

BACKGROUND

The Patillos own three contiguous tracts of land totaling 449.977 acres. The only ingress and egress to the land is a road extending from FM1303. The parties agree that the highest and best use of the property is residential.

As part of SAWS’ Aquifer Storage and Recovery (“ASR”) Project, SAWS sought to condemn 6.724 acres of the Patillos’ property for an easement to build an underground pipeline. The pipeline would include one above-ground pressure valve at the edge of the Patillos’ land.

In July of 2002, a special commissioners’ hearing was held, and the commissioners entered an award of $9,600.00 for the easement and $14,400.00 for damages to the remainder property, for a total award of $24,000.00. The Patillos objected to the award, and SAWS filed a notice of deposit of the award into the court’s registry. In December of 2002, SAWS filed its first amended original petition in condemnation. The Patillos’ special exceptions to the petition were granted, and SAWS filed a second amended original petition. The Patil-los filed special exceptions to the second amended petition, and the parties filed cross motions for summary judgment addressing the issue of whether the easement created a material and substantial impairment of access to the remainder of the Patillos’ property. The trial court granted SAWS summary judgment motion, denied the Patillos’ motion, and confirmed the award of the special commissioners.

Standard of Review

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Tex. Commerce Bank, N.A v. Grizzle, 96 S.W.3d 240, 252 (Tex.2002). In reviewing a traditional motion for summary judgment, the reviewing court must resolve every doubt and indulge every reasonable inference in the nonmovant’s favor. Id. All evidence favorable to the nonmovant will be taken as true. Id. When both sides move for summary judgment and the trial court grants one motion but denies the other, the reviewing court should review both sides’ summary judgment evidence, determine all questions presented, and render the judgment that the trial court should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

Discussion

A. Special Exceptions

The Patillos initially contend that the trial court erred in denying their special exceptions to SAWS’ second amended original petition. The Patillos assert that SAWS should have been required to set out with specificity the proprietary rights reserved unto the Patillos. Absent such specificity, the Patillos contend that the trial court should have dismissed the second amended original petition or found that access to the remainder was substantially and materially impaired.

We review a trial court’s ruling on special exceptions under an abuse of discretion standard. Hefley v. Sentry Ins. Co., 131 S.W.3d 63, 65 (Tex.App.-San Antonio 2003, pet. denied). The purpose of special exceptions is to force clarification and specification in the pleadings, when they are not clear or sufficiently specific. Id.

The Patillos assert that the special exceptions should have been granted because the description of the rights reserved to them as a result of the “limited” easement were not sufficiently specific. The Patillos contend that the description contains mere promissory statements or declarations of future intentions rather than setting out the particular rights that were reserved to them. See Coastal Indus. Water Authority v. Celanese Corp. of America, 592 S.W.2d 597, 601-02 (Tex.1979) (distinguishing between promissory statements which are prohibited and a description of reserved rights under a limited easement); White v. Natural Gas Pipeline Co. of America, 444 S.W.2d 298, 300-01 (Tex. 1969) (same).

The petition states:

9. As further delineated in Section V, Paragraphs E(14), (15), and (16) below, Defendants and Defendants’ heirs, successors, and assigns (hereinafter “Defendants”) shall have the right to use all or any part of the permanent easement sought to be acquired herein for any purpose that does not interfere with Plaintiffs rights to construct, reconstruct, realign, inspect, patrol, maintain, operate, repair, add, remove and replace underground pipelines for the transportation and distribution of water, together with all necessary or desirable above and below ground appurtenances thereto within the permanent easement. “Interfere”, as used herein, shall mean any act of Defendants which physically prevents Plaintiff from constructing, reconstructing, realigning, inspecting, patrolling, maintaining, operating, repairing, adding, removing and replacing underground pipelines for the transportation and distribution of water, together with all necessary or desirable above and below ground appurtenances thereto. The rights set out in Section V, Paragraphs E(14), (15), and (16) below expressly do not interfere with Plaintiffs right to construct, reconstruct, realign, inspect, patrol, maintain, operate, repair, add, remove and replace underground pipelines for the transportation and distribution of water, together with all necessary or desirable above and below ground appurtenances thereto within the permanent easement.

Section V, Paragraphs E(14), (15), and (16) provide:

E. Defendants’ Specific Rights Within the Permanent Easement

14. Defendants’ Right of Access. Defendants will have the perpetual right to access their property on either side of the permanent easement, and such access shall not be denied by Plaintiff.
15. Defendants’ Right to Develop their Property. Defendants may build roads, drive-ways, fences, gates, signs, parking areas, and landscaped .areas within the permanent easement. Defendants may also construct and/or install water pipelines, sewer pipelines, gas pipelines, electric power-lines, cable television lines, telephone lines, and other utility lines across the permanent easement.
16. Defendants may not construct or place a building or other structure, or excavation, on, over or within the permanent easement. “Structure”, as used herein, is to be interpreted in its narrowest sense, and shall include such things as buildings, houses, edifices, and concrete slabs. “Excavation”, as used herein, includes such things as ponds, lakes, reservoirs, and swimming pools. The following items are specifically excluded from the definitions of the terms “structure” and “excavation” as used herein: roads, drive-ways, fences, gates, signs, parking areas, side-walks, landscaped areas; water pipelines, sewer pipelines, gas pipelines, electric power-lines, cable television lines, telephone lines, and other utility lines. Defendants may not change the grade or alter the ground elevation of the land within the permanent easement. Defendants may not damage, destroy, and/or injure Plaintiffs water facilities within the permanent easement.

We hold that the trial court did not abuse its discretion in denying the Patillos’ special exceptions to SAWS’ second amended original petition. The foregoing language used in the petition sufficiently described the proprietary rights reserved to the Patillos as a result of the “limited” easement, and the language does not contain mere promissory statements or declarations of future intentions. The language vests immediate rights in the Patillos with the only limitation being that the Patillos may not harm SAWS’ pipeline. Although the Patillos contend that the language does not expressly reserve in them the right to grant easements, thereby precluding development, the granting of the right to construct and/or install water pipelines, sewer pipelines, gas pipelines, electric power-lines, cable television lines, telephone lines, and other utility lines across the permanent easement necessarily includes the right to grant such easements.

B. Material and Substantial Impairment of Access to the Remainder

The Texas Constitution requires governmental entities to compensate landowners adequately when property is taken for public use. County of Bexar v. Santikos, 144 S.W.3d 455, 459 (Tex.2004). If a governmental entity condemns only part of a tract, adequate compensation is required for both the part taken and any resulting damage to the remainder. Id. Not all damages to remainder property are com-pensable. Id. Whether damages can be recovered depends on what kind of damage is involved. Id. Compensability is a question of law for the court, and subject to de novo review. Id.

In this case, the Patillos sought damages for impaired access to the remainder property. Impaired access to remainder property is a compensable special injury only if a material and substantial impairment of access exists as a matter of law. Id. at 460. Whether access rights have been materially and substantially impaired is a question of law. State v. Heal, 917 S.W.2d 6, 9 (Tex.1996).

The Patillos’ contention that the remainder property was materially and substantially impaired hinges on their premise that the proprietary rights reserved to them “do not include the right to dedicate or grant easements for the extension of utilities” preventing them from subdividing the property for residential purposes. The Patillos rely on their expert’s testimony that as a result of the taking, the remainder property was “landlocked.” SAWS responds that the Patillos’ expert stated that he only had assumed that the remainder property was landlocked at the direction of the Patillos’ legal counsel. SAWS further responds that the proprietary rights reserved to the Patillos give them the ability to grant whatever easements are necessary under either the Bexar County Specifications for Subdivisions and Public Works Construction (the “County Specs”), which SAWS contends is not applicable, or the San Antonio Unified Development Code (“UDC”).

Kirby Gholson was the expert for the Patillos. In testifying regarding the damage to the remainder property, he testified, “The balance of the remainder after, 429.253 acres, again with the assumption that it’s not developable, not usable, has no access through any other property at this point in time ag value would be $53 an acre.” The Patillos’ attorney asked Ghol-son to respond to the following hypothetical:

Q. Let me ask you the same hypothetical I asked Mr. Groll. Let’s assume that I am correct in my interpretation of the law in that the language in the charging document filed in the county court here [i.e., the second amended original petition] is such that it precludes doing those things described in one of those exhibits I gave; that is water lines, sewer lines, cable lines, electrical lines, and so on. Let’s suppose we’re precluded from doing that and, therefore, the highest and best use of that property is not residential anymore. Do you have an opinion as to the value that would remain in the remainder? A. Basically that’s how the report was prepared. And that is that it would be a single residential site, not subdivision property, not any kind of producing as it is before the easement. It has the potential to produce tremendous income with development but not after the easement.

With regard to his underlying assumption, Gholson responded as follows during cross-examination:

Q. Okay. Now, I believe you just said that you based your report on one very big assumption — the premise you called it — with the premise that the easement precludes any development behind it. That’s your premise?
A. That was my assignment.
Q. Okay. So did you come up with that premise, or who came up with that premise?
A. Mr. Dennard [counsel for the Patil-los].
Q. Okay.
A. That was the assignment.
Q. Okay. Well, if you were just sent out to appraise this property without his legal interpretation, would you have come up with a different value?
MR. DENNARD: Objection. I object to the characterization of that as my legal interpretation. That is the law.
MR. BARKHURST: And — And I’d ask the question just the same way. We’re going to argue about that interpretation.
MR. WISE : The objection is going to be overruled.
MR. BARKHURST: Okay. Thank you.
Q. (By Mr. Barkhurst) If you had gone out there just on your own without Mr. Dennard’s legal interpretation of the law, would you have come up with a value similar to Mr. Groll’s [SAWS’ expert]?
A. It would depend on what I read in the easement and what the interpretation was. And I’m not an attorney. And I hire a lot of attorneys to keep me out of stuff just like this. I’m not going to buy that piece of property for a subdivision. It’s ideal for a 60-foot road down the middle and lots on both sides. But I’m not going to buy it with that easement right across the front of it not knowing what that easement says.
Q. Okay.
A. And I have to say that when you buy and sell enough property you appraise property every time you do that.
Q. And I appreciate that. You have a lot of experience in real estate development. And I appreciate that. In fact, let me ask you the hypothetical questions that Mr. Dennard asked Mr. Groll. Let’s assume that the petition is correct and your clients can, in fact, cross this easement with roads and with utilities. Let’s assume that hypothetically as an expert. Would that change your opinion in this case?
A. Yes. It would be usable afterwards.
Q. Okay. And, therefore, would your value be more in alignment with Mr. Groll’s?
A. It would be.

At the hearing before the special commissioners, SAWS introduced the testimony of Michael Brinkman, a civil engineer and the project manager for the ASR project. Brinkman testified that the easement would not sever or cut off the back portion of the property. Wayne Groll, SAWS’ appraisal expert, similarly testified that the easement would not preclude the future use of the land for a subdivision. SAWS further introduced as summary judgment evidence the affidavit of Eddie Guzman, the manager for the City of San Antonio Development Services Department, who stated he was familiar with the County Specs and the UDC. Guzman stated that he had reviewed the second amended original petition and that “[t]here is no impediment in the petition, the permanent easement, the UDC or the County Specs to platting and subdividing the Patillo Property.”

After reviewing the petition, we conclude as a matter of law that the permanent easement does not result in a material and substantial impairment of access to the remainder property. Accordingly, the trial court properly concluded that the Pa-tillos were not entitled to damages for impaired access to the remainder property.

Conclusion

The trial court’s judgment is affirmed.

      . The ASR project is part of San Antonio's 50-year water plan, and the pipeline to be built by SAWS as part of the project would connect downtown San Antonio with an underground drinking and storage facility in South Bexar County.

      . For purposes of this opinion, we have assumed, without deciding, that an underground pipeline can result in impaired access to the remainder property. See State v. Heal, 917 S.W.2d 6, 11 (Tex.1996) (noting impaired access cases generally involve physical obstructions created by a public improvement but not precluding the possibility that traffic could materially and substantially impair access).

      . Mr. David Wise was one of the three special commissioners who presided at the commission level.


author: PER CURIAM.

text:
    In the Estate of Edmundo J. GOMEZ, Jr., Deceased.
    No. 04-04-00542-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 2, 2005.
    Rehearing Overruled March 4, 2005.
    Robert J. Ogle, Law Office of Robert J. Ogle, P.C., Boerne, Michael B. Clark, The Clark Law Firm, San Antonio, for appellant.
    Renee Forinash McElhaney, Natalie L. Hall, Cox & Smith Incorporated, Kathleen A Hurren, Susan E. Dvorak, San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice.
   OPINION

PER CURIAM.

Rose Gomez passed away in May of 2002. She was preceded in death by her husband, Edmundo Gomez, who passed away in 2001. Their grandchildren, Jeffrey and Gregory Richards (“Richards”), filed an application to probate the wills executed by Mr. and Mrs. Gomez in 1991. Robert Gomez (“Gomez”), Mr. and Mrs. Gomez’s son, opposed the wills, contending that they had been revoked by wills executed in 2000. Gomez also filed an application to probate the 2000 wills. The Richards opposed Gomez’s application on the basis that the 2000 wills were executed at a time when Mr. and Mrs. Gomez lacked capacity and that the 2000 wills were the result of undue influence.

A jury trial was held on the issues pertaining to the 2000 wills, and a jury found undue influence and lack of capacity. The probate court entered a judgment: (1) denying Gomez’s application to probate the 2000 wills; (2) setting aside a deed signed at a time that Mr. and Mrs. Gomez lacked capacity; (3) setting aside an account opened at a time that Mrs. Gomez lacked capacity; and (4) awarding the Richards attorneys’ fees for contesting the 2000 wills.

Gomez filed a notice of appeal but later filed a motion in this court seeking to have the appeal abated because his notice of appeal was prematurely filed. This court ordered briefing on the jurisdictional issue of whether the probate court’s judgment is appealable. The briefing is complete.

The test for determining whether a probate court order is appealable is as follows:

If there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceeding to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of the proceeding raise issues or parties not disposed of, then the probate order in interlocutory.

Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995). This test modifies the “one final judgment” rule because of the “need to review controlling, intermediate decisions before an error can harm later phases of the proceeding.” In re Estate of Padilla, 103 S.W.3d 563, 566 (TexApp.-San Antonio 2003, no pet.). The test has been described as permitting an appeal where an order “adjudicate^] conclusively a controverted question or substantial right” or “finally dispose[s] of the issue or controverted question for which that particular part of the proceeding was brought.” Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex.App.-Austin 2000, pet. denied); Spies v. Milner, 928 S.W.2d 317, 318 (Tex.App.-Fort Worth 1996, no pet.).

With regard to the judgment in this case, a specific statutory provision governs the procedure to be followed by a trial court when a second application for the probate of a will is filed at a time when the original application has not been heard. See Tex. Prob.Code Ann. § 83(a) (Vernon 2003). Section 83(a) provides:

If, after an application for the probate of a will or for the appointment of a general personal representative has been filed, and before such application has been heard, an application for the probate of a will of the decedent, not theretofore presented for probate, is filed, the court shall hear both applications together and determine what instrument, if any, should be admitted to probate, or whether the decedent died intestate.

Id. This court has held that Section 83(a) “mandates that a court hear together different applications for probate of multiple wills” and that “[t]he mandatory nature of this section leads to a reasonable inference that the drafters of the probate code favor the use of a single proceeding to determine the validity of multiple wills.” Harkins v. Crews, 907 S.W.2d 51, 57 (Tex.App.-San Antonio 1995, writ denied).

Applying the test set forth in Crowson, Section 83(a) is an “express statute.” See Crowson, 897 S.W.2d at 783. Although Section 83(a) does not expressly “dec-lar[e][a] phase of the probate proceeding to be final and appealable,” it requires a trial court to rule on two pending will applications at the same time and determine which will should be admitted to probate. See id. Accordingly, Section 83(a) controls the finality of a judgment when two competing will applications are pending because it dictates the procedure to be followed by the trial court. See id.; see also McClure v. JPMorgan Chase Bank, 147 S.W.3d 648 (Tex.App.-Fort Worth 2004, pet. filed) (holding nonsuit of second will application necessary to make a partial summary judgment order final where two competing will applications had been filed). Because the trial court has not ruled on the Richards’ application for the probate of the 1991 wills and has not determined what instrument, if any, should be admitted to probate, the trial court’s judgment denying the application to probate the 2000 wills is not appealable.

Appellant has requested that this appeal be abated until the trial court enters an appealable judgment. Given the uncertainty of the trial court’s ultimate ruling and the time it may take to reach a final ruling, we deny appellant’s request. The appeal is dismissed for lack of jurisdiction. In the event a second appeal is filed, this court will entertain a motion to transfer the records from this appeal to the newly filed appeal.