Houston Lighting & Power Co. v. Russo Properties, Inc., No. 01-85-0904-CV

• Court: Court of Appeals of Texas
• Writing for the Court: LEVY
• Citation: 710 S.W.2d 711
• Decision Date: 24 April 1986
• Docket Number: No. 01-85-0904-CV
• Parties: HOUSTON LIGHTING & POWER COMPANY, Appellant, v. RUSSO PROPERTIES, INC., Appellee. (1st Dist.)

Page 711

710 S.W.2d 711 HOUSTON LIGHTING & POWER COMPANY, Appellant,
v.
RUSSO PROPERTIES, INC., Appellee. No. 01-85-0904-CV. Court of Appeals of Texas,
Houston (1st Dist.). April 24, 1986.

Page 712

William C. Donahue, George H. Roper, Houston, for appellant.

Craig S. Wolcott, Susan E. Crowley, Taylor, Hays, Price, McConn & Pickering, Houston, for appellee.

Before DUGGAN, DUNN and LEVY, JJ.

OPINION

LEVY, Justice.

This is an appeal from a suit seeking payment for electrical services in which appellant received a take nothing judgment and appellee recovered $367.33 on its counterclaim and $3,570 in attorney's fees.

Prior to November 30, 1980, Houston Lighting & Power ("H.L. & P.") began providing electrical services to Pizza Hut of Houston, Inc. ("Pizza Hut") at 5860 Ranchester, # 600-C. The property was owned by Russo Properties, Inc. ("Russo"). On November 30, Pizza Hut vacated the premises, apparently failing to notify H.L. & P. or terminate its services. The property remained vacant for an unstated period, and was then leased by Geosource, Inc. ("Geosource").

In its second amended petition, H.L. & P. brought suit against Geosource, Pizza Hut, and Russo for $4,342.96. The amended account reflects services for the period from November 30, 1980, to September 23, 1981. The attached sworn statement reflects that the total services charged were

Page 713

$4,710.29 and shows a full refund in that amount was issued to Pizza Hut in May 1983. It further reflects a payment by Russo in the amount of $367.33 on March 6, 1984, equaling the amount alleged due for the period of November 30, 1980, to February 4, 1981. The balance remaining for which H.L. & P. sought payment was $4,342.96.

All three defendants answered by general denial. Russo and Geosource asserted that they were strangers to the account. Pizza Hut affirmatively asserted estoppel and waiver by reason of the refund.

H.L. & P. nonsuited Pizza Hut and Geosource, and proceeded against Russo. By its third amended answer, Russo asserted a counterclaim under the Texas Deceptive Trade Practices-Consumer Protection Act ("DTPA"), Tex.Bus. & Com.Code Ann. sec. 17.41, et seq. (Vernon Supp.1986), seeking actual and treble damages and attorney's fees.

H.L. & P. brings no statement of facts. The transcript reflects that trial was to a jury, which found that Russo was not liable to H.L. & P. but, on the contrary, that Russo was entitled to a refund of $367.33 and reasonable attorney's fees of $5,100. The trial court entered judgment on the verdict. In response to H.L. & P.'s motion to modify the judgment, the trial court reduced the award of attorney's fees to $3,570.

H.L. & P. brings this appeal asserting two points of error.

By its first point, H.L. & P. complains of the award of attorney's fees, asserting that Tex.Rev.Civ.Stat.Ann. art. 2226 ¹--now Tex.Civ.Prac. & Rem.Code Ann. sec. 38.001, et seq. (Vernon 1986)--does not entitle Russo to attorney's fees for defending a claim or for prosecuting a counterclaim it lost, and that the fees awarded are excessive, bearing no reasonable relationship to the amount in dispute.

Under rules that are well-established in this State, absent fundamental error, where there is no statement of facts or findings of fact in the record, and where it is established by the record that evidence was presented to the [trier of fact] prior to the rendition of judgment, it must be presumed, as a matter of law, that the trial court found facts which will and do support the judgment.

Duval County Ranch Co. v. Harlingen National Bank, 577 S.W.2d 563, 566 (Tex.Civ.App.--Corpus Christi 1979, no writ); see Guthrie v. National Homes Corp., 394 S.W.2d 494 (Tex.1965); Armenta v. Nussbaum, 519 S.W.2d 673 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.); Tex.R.Civ.P. 386.

The burden is on the appellant to bring a sufficient record to show reversible error. Duval County Ranch, 577 S.W.2d at 566; Tex.R.Civ.P. 413. Without a statement of facts, the Court of Appeals is limited to review of fundamental error. See Armenta, 519 S.W.2d at 676.

Appellant contends that the case presents fundamental error. In essence, it contends that the trial court denied Russo its counterclaim under the DTPA before submission to the jury, so that there was no recovery under the DTPA, and that attorney's fees were not recoverable under the statute. See Conann Constructors, Inc. v. Muller, 618 S.W.2d 564, 568 (Tex.Civ.App.--Austin 1981, writ ref'd n.r.e.).

We find nothing in the transcript to show that Russo lost its counterclaim. On the contrary, the judgment reflects that Russo won a recovery, although not necessarily under the DTPA.

Russo asserted in its response to H.L. & P.'s motion for new trial that its counterclaim was founded upon a sworn account, i.e., the account presented by H.L. & P. As submitted, the special issues reflect that each party sought recovery and attorney's fees under a theory of quantum meruit.

Page 714

Article 2226 before recodification in 1985 provided:

Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured, or suits founded upon a sworn account or accounts, or suits founded on oral or written contracts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, payment for the just amount owing has not been tendered, the claimant may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney's fees. The usual and customary fees in such cases shall be presumed to be reasonable, but such presumption may be rebutted by competent evidence. ²

In Olivares v. Porter Poultry & Egg Co., 523 S.W.2d 726 (Tex.Civ.App.--San Antonio 1975, no writ), the court, in a similar situation, held that attorney's fees were recoverable under an alternative theory of quantum meruit. The court observed that there was nothing in the record, absent a statement of facts, to support a contention that appellee had abandoned a claim on a sworn account. Id. at 731. The court further observed that attorney's fees had been recoverable under article 2226 in suits submitted on quantum meruit. Id. at 732; see, e.g., Ferrous Products Co. v. Gulf States Trading Co. 160 Tex. 399, 332 S.W.2d 310 (1960); Intercity Investsments Co. v. Plowman, 542 S.W.2d 260 (Tex.Civ.App.--Fort Worth 1976, no writ); Freeman v. Carroll, 499 S.W.2d 668 (Tex.Civ.App.--Tyler 1973, writ ref'd n.r.e.).

Because it appears that Russo's trial amendment, seeking attorney's fees, was made before closing arguments and submission of the charge to the jury, we find that no objection to submission of either liability or fee issues was presented to the trial court for its consideration. The failure of a party to object to special issues contained in the charge before it is presented to a jury constitutes a waiver of objections, and such objections are not preserved for our review. See Olivares, 523 S.W.2d at 730. The issue was first raised in H.L. & P.'s motion to modify the judgment or for new trial. Objection first presented in a motion for new trial does not preserve a non-jurisdictional error for review. See, e.g., Vick v. George, 696 S.W.2d 160, 162 (Tex.App.--San Antonio 1985, writ ref'd n.r.e.); Hughes v. Hughes, 407 S.W.2d 14, 15 (Tex.Civ.App.--Waco 1966, no writ).

In summary, the transcript does not reflect that Russo "lost" its counterclaim. We accordingly presume that the...