Houston Lighting & Power Co. v. Russo Properties, Inc.

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

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.

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 $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.

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 trial court permitted recovery of attorney's fees under an appropriate theory absent timely objection. Without a statement of facts or other record of proceedings related to the trial amendment, we are unable to perceive fundamental error.

Appellant also asserts that Russo is not entitled to attorney's fees as a matter of law under article 2226 for defending a claim. H.L. & P. contends that attorney's fees were awarded for time spent preparing and defending against H.L. & P.'s claim.

Recent cases have held that when the counterclaimant is forced to defend against all claims before it can recover on the counterclaim, it is entitled to recover attorney's fees devoted to defending against the claims. This appears to be the case when in proving the counterclaim, defending against the claim is automatic, or when the appellee's counterclaim is so closely interwoven with the appellant's cause of action that no distinction in the prosecution and defense of the suit is necessary. See RepublicBank Dallas, N.A. v. Shook, 653 S.W.2d 278 (Tex.1983); First-Wichita National Bank v. Wood, 632 S.W.2d 210 (Tex.App.--Fort Worth 1982, no writ); Wilkins v. Bain, 615 S.W.2d 314 (Tex.Civ.App. --Dallas 1981, no writ); willIamson v. tuckEr, 615 s.w.2D 881 (Tex.Civ.App.--Dallas 1981, writ ref'd n.r.e.); Ortiz v. O.J. Beck & Sons, Inc., 611 S.W.2d 860 (Tex.Civ.App.--Corpus Christi 1980, no writ); Damstra v. Starr, 585 S.W.2d 817 (Tex.Civ.App.--Texarkana 1979, no writ); Miller v. Patterson, 537 S.W.2d 360 (Tex.Civ.App.--Fort Worth 1976, no writ).

Because both claims arose from the single account, in order for Russo to recover the amount it paid to H.L. & P., it had to prove it was not liable for any of the period in question. Much of Russo's time and efforts in prosecuting the counterclaim have been inextricably interwoven with defending against the claim. Russo's response to H.L. & P.'s motion for new trial alternatively alleged that the amount subsequently awarded was a reasonable fee for preparing and prosecuting the counterclaim. We conclude that the disparity between the damage and fee award is attributable to the inseparable relationship of both claims. There is no record of objection to the charge, of requested issues severing the time spent on prosecution from time spent on defense, or objections to admissibility of...