Samar Aijaz v. Matthew Arellano

AFFIRMED and Opinion Filed December 27, 2023




                                   S  In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                               No. 05-22-01133-CV

                         SAMAR AIJAZ, Appellant
                                  V.
                       MATTHEW ARELLANO, Appellee

                 On Appeal from the 296th Judicial District Court
                              Collin County, Texas
                     Trial Court Cause No. 296-53911-2022

                MEMORANDUM OPINION ON REHEARING
                   Before Justices Carlyle, Smith, and Kennedy
                            Opinion by Justice Smith

      On the Court’s own motion, we withdraw our November 14, 2023

memorandum opinion and vacate the judgment of that date. This is now the opinion

of the Court.

      Appellant Samar Aijaz appeals from the trial court’s protective order

concerning appellee Matthew Arellano. In one issue, appellant argues that the trial

court erred in denying her request for attorney’s fees because appellee agreed to the

request. Because we conclude that the trial court did not abuse its discretion in

denying appellant’s request for attorney’s fees, we affirm.
                                    Procedural Background

        Appellant initially filed a pro se application for a protective order, which

requested the trial court to order appellee to pay for fees and costs of court, and

reasonable attorney’s fee if applicable. Subsequently, appellant hired counsel and

filed a supplemental application, again requesting attorney’s fees and costs. At the

hearing, appellee’s attorney represented to the trial court that appellee did not oppose

the protective order.1 The parties presented an order for the trial court to sign, which

it did. However, the trial court struck through the proposed award of attorney’s fees

and wrote, “The issue of attorney’s fees is reserved for the length of the Protective

Order and the Court may award fees in the future based on the allegations and any

violation of this Protective Order.”2

        Appellant filed a motion to modify, correct, or reform the protective order to

include an order of attorney’s fees. After a hearing, the trial court denied appellant’s

motion, and this appeal followed. See TEX. FAM. CODE ANN. § 81.009(a).

                                          Attorney’s Fees

        A trial court may assess reasonable attorney’s fees against a party whom an

agreed protective order is rendered as compensation for the services of a private

attorney. Id. § 81.005(a). “In setting the amount of attorney’s fees, the court shall



    1
     The trial court also heard and granted appellee’s petition to enjoin harassing behavior by appellant,
which appellant has separately appealed in Cause No. 05-23-00628-CV.
    2
     The trial court also struck language that ordered appellee to complete a battering intervention and
prevention program (BIPP), which appellant does not challenge on appeal.
                                                  –2–
consider the income and ability to pay of the person against whom the fee is

assessed.” Id. § 81.005(b).

      Here, appellant offered no evidence of the amount of reasonable and necessary

attorney’s fees charged by appellant’s counsel, and no evidence was presented

regarding appellee’s income or ability to pay such fees. Appellant argues that

appellee agreed or stipulated to the fees requested; therefore, she was not required

to present evidence regarding the amount of reasonable and necessary fees she was

requesting, and the trial court was bound by the parties’ agreement to award fees.

See Alcedo v. Alcedo, No. 02-17-00451-CV, 

, at *3 (Tex. App.—

Fort Worth May 30, 2019, pet. denied) (mem. op.) (“Because stipulations constitute

judicial admissions, they are conclusive on the issues addressed, and they estop the

parties from claiming to the contrary.” (citing Shepherd v. Ledford, 

 (Tex. 1998)).

      We do not agree that the record establishes appellee stipulated or agreed to

the amount of attorney’s fees requested when he agreed to the protective order. “A

stipulation should not be given greater effect than the parties intended, and should

not be construed as an admission of a fact intended to be controverted.” In re C.C.J.,

 (Tex. App.—Dallas 2008, no pet.). When construing a

stipulation, the court must determine the intent of the parties by the language used

in the agreement and by examining the surrounding circumstances of the agreement,

including the state of the pleadings. 

                                            –3–
      The specific fee amount requested—$4,500—was not included in appellant’s

application for protective order. At the end of the hearing, when the trial court asked

if the parties had an agreed order for the court to sign, appellee’s counsel indicated

that he had not seen the proposed order. The order is the first and only time the

specific amount requested appears in the record. Therefore, at the beginning of the

hearing, when appellee’s counsel announced, “We don’t oppose the protective order

at all, so we can just agree to that,” appellee could not have been agreeing to pay

$4,500 in attorney’s fees. And, there is no indication on the record that appellee

agreed to the $4,500 amount after having an opportunity to review the proposed

order. The trial court instructed the parties to advise the court when the order was

ready for signature, and the proceedings concluded. Thus, whatever transpired after

appellant’s counsel presented appellee’s counsel with the proposed order is not in

the record before us.

      Furthermore, at the hearing on the motion to modify, correct, or reform the

protective order, appellant’s counsel represented the following to the trial court:

      [A]s the Court probably recalls, a final protective order was entered at
      the end of July. Most of the protective order was agreed, including the
      family violence finding. I think the two issues that were in contest were
      fees and the BIPP course. And the Court had made some notations on
      the Final Order after denying the fees but saying that it was reserved
      should there be a violation, and then I think the Court just outright
      denied the BIPP.

In response to appellant’s request to reconsider the denial of attorney’s fees, it

appears that the trial court thought counsel was referring to court ordered fees, not

                                         –4–
attorney’s fees because the trial court stated that the issue of fees was between it, the

county, and appellee. However, by appellant counsel’s own representation, the issue

of attorney’s fees was contested at the original hearing and, therefore, the trial court

did not disregard the parties’ stipulation when it denied appellant’s request for fees.

      Based on the record before us, we cannot conclude that appellee stipulated to

attorney’s fees or that the trial court erred in striking out the attorney’s fee award in

the proposed order. We overrule appellant’s sole issue on appeal.

                                      Conclusion

      Having overruled appellant’s sole issue on appeal, we affirm the trial court’s

protective order.




                                             /Craig Smith/
                                             CRAIG SMITH
                                             JUSTICE
221133F.P05




                                          –5–
                                    S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

SAMAR AIJAZ, Appellant                         On Appeal from the 296th Judicial
                                               District Court, Collin County, Texas
No. 05-22-01133-CV           V.                Trial Court Cause No. 296-53911-
                                               2022.
MATTHEW ARELLANO, Appellee                     Opinion delivered by Justice Smith.
                                               Justices Carlyle and Kennedy
                                               participating.

       In accordance with this Court’s opinion of this date, the protective order of
the trial court is AFFIRMED.

       It is ORDERED that appellee MATTHEW ARELLANO recover his costs
of this appeal from appellant SAMAR AIJAZ.


Judgment entered this 27th day of December 2023.




                                         –6–