Mack v. Moore

• Decision Date: 12 April 1984
• Docket Number: No. 01-83-0549-CV,01-83-0549-CV
• Citation: 669 S.W.2d 415
• Parties: Bruce R. MACK d/b/a Mace & Mack, an association of attorneys at law, Appellant, v. Andy and Wilma MOORE d/b/a Andy Moore & Son Aeronautical Specialties, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 415

669 S.W.2d 415

Bruce R. MACK d/b/a Mace & Mack, an association of attorneys at law, Appellant, v. Andy and Wilma MOORE d/b/a Andy Moore & Son Aeronautical

Specialties, Appellees.

No. 01-83-0549-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

April 12, 1984.

Bruce B. Mack, Mace & Mack, Houston, for appellant.

John Gilleland, Houston, for appellees.

Before WARREN, COHEN and BASS, JJ.

OPINION

BASS, Justice.

This is a suit upon a sworn account, and in the alternative for quantum meruit, seeking $3,150.00 in fees for accounting and tax services performed for appellees and $1,950.00 in attorney's fees incurred in the collection and prosecution of this case. The case was tried to the court. The appellees defended on the basis that all fees incurred had been paid in full, and further asserted that the charges alleged by appellant were not in accordance with their set fee of $90.00 per month. The appellant presented his case-in-chief and rested, and the appellees rested immediately thereafter, calling no witnesses to controvert appellant's claim.

The trial court entered judgment for appellant, finding that the appellees requested the services be performed, that the services were performed to the satisfaction of appellees, that there was no agreement whereby appellees would pay appellant a set fee per month, and that the appellees had agreed to pay the reasonable value of the services which were performed. The court then rendered judgment for appellant, finding that the reasonable value of the appellant's services was $275.00 per month, and the amount still due and owing by appellees was $1,035. Additionally, the trial court awarded appellant one third of the final judgment, or $300.00, in attorney's fees. The appellant appeals on the points that trial court's valuation of both his services and his attorneys fees was erroneous.

The appellant, Bruce R. Mack, is a licensed C.P.A. and tax attorney, with an L.L.M. in taxation. His tax experience includes numerous years as an agent and regional supervisor for the I.R.S. and as an auditor with a large public accounting firm.

In January of 1981, the appellees retained the appellant to perform certain tax work in connection with their business, including the reconciliation of their prior bank accounts and employee payroll tax records, and the preparation and filing of their income tax return for 1980. In connection with this work, appellant was to review prior years payroll tax returns and to amend as necessary, file any and all necessary reports, and then keep appellees' records current through the quarterly preparation of payroll tax returns, sales tax reports, and the monthly preparation of their profit and loss statements.

Appellant completed the agreed work, preparing all necessary returns and delivering this work to the appellees. The degree of difficulty in the preparation of these reports was greatly enhanced by various errors within the prior reports and bank statements. This required the appellant supervisory employee to have several conferences with appellees in an attempt to reconcile these errors. The appellant personally presented his final invoice of $4,865.00 to appellees, and explained the charges as they related to the work which he performed. Appellees agreed to pay the invoice and further negotiated a set fee of 275.00 per month for future work, including the periodic preparation of the company's payroll reports etc. However, after they had paid appellant $1,715.00, of the invoice, appellees refused to pay the remaining balance, claiming the bill was paid in full. This action left $3,150.00 still due and owing on the account, and the appellant was forced to file suit to collect the balance.

Trial was to the court, and after judgment for appellant the trial judge, upon proper request, made the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. On or about January 1, 1981, Defendants engaged Plaintiff to perform certain accounting and tax work for them.

2. Defendants had no agreement with Plaintiff for a set sum for the work but

were to pay the reasonable value of services rendered.

3. Plaintiff performed the services as reflected on his invoices to Defendants.

4. Defendants were satisfied with the services performed by the Plaintiff.

5. The reasonable value of the services performed by Plaintiff is $2,750.00 (10 months X $275.00) and Defendants have paid to the Plaintiff $1,715.00 leaving a balance due of $1,035.00.

6. Plaintiff had to engage John J. Eikenburg, a Texas attorney, to collect plaintiff's claim.

7. Plaintiff is entitled to attorney's fees under Article 2226, Texas Revised Civil Statutes.

CONCLUSIONS OF LAW

1. Defendants are indebted to Plaintiff for the sum of $1,035.00.

2. The indebtedness of Defendants to Plaintiff bears interest at the rate of six percent per annum from January 1, 1982, until date of Judgment.

3. Plaintiff is entitled to attorney's fees equal to one-third of the judgment, being $300.00.

4. Plaintiff's right to collection of such indebtedness is not barred by limitations.

Initially, the appellant contends the trial court erred in not finding as a fact that the reasonable value of the services he performed and which were still due and owing to him by the appellees was $3,150.00, because there is no evidence upon which to support any other conclusion, or alternatively, the trial court's finding as to the amount due and owing is against the weight of the evidence. In this point of error, appellant combines a "matter of law" point and an "against the great weight" point in one ground of error. In essence, the appellant contends the evidence introduced at trial established the value of his services due and owing to be $3,150.00, as a matter of law, and asks us to reverse the trial court judgment and render judgment for appellant in this amount.

In the alternative, appellant asserts the finding of the trial court as to the value of his services is so against the great weight and preponderance of the evidence as to be manifestly unjust, and thus requires a reversal of the judgment and remand of the case for a new trial.

To determine a "no evidence" or "matter of law" point this court must disregard all evidence contrary to the trial court's finding, and if there is any remaining evidence which would support the verdict or judgment, the trial court's judgment must be upheld. If, after the removal of all contrary evidence this court finds an absence of any evidence which would support the verdict or judgment, a contrary conclusion to the verdict or judgment is required as a matter of law. In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The finding at issue before this court is the amount of the trial court's award as the reasonable value of the accounting services which were performed. The direct, positive, uncontroverted evidence as presented by the three experts, including appellant and appellant's ex-employee (the appellees' present accountant) was that the charges as evidence in the invoices were reasonable charges for the services which were performed. However, in spite of this fact the trial court assessed the value of those service at the...