McDaniel v. Tucker

• Decision Date: 13 March 1975
• Docket Number: No. 929,929
• Citation: 520 S.W.2d 543
• Parties: Mrs. S. Taylor McDANIEL, Appellant, v. J. G. TUCKER, d/b/a Quality Construction Company, Appellee.
• Court: Texas Court of Appeals

Page 543

520 S.W.2d 543

Mrs. S. Taylor McDANIEL, Appellant, v. J. G. TUCKER, d/b/a Quality Construction Company, Appellee.

No. 929.

Court of Civil Appeals of Texas Corpus Christi.

March 13, 1975.

Harry H. Dobbs, Jr., Trimble & Dobbs, John J. Pichinson, Corpus Christi, for appellant.

Charles G. Lyman, Lyman & Sudduth, Corpus Christi, for appellee.

OPINION

BISSETT, Justice.

This is a suit to recover money allegedly due under contracts for labor performed and materials furnished, or, in the alternative, for a recovery based on quantum meruit. Suit was instituted by J. G. Tucker on July 12, 1972. Following a jury trial, judgment was rendered on June 6, 1974 that plaintiff recover $9,613.76 (as damages) from defendant and that he recover the further sum of $3,204.58 (for attorney's fees) from her, together with 6% Interest per annum on each of said amounts of money from date of judgment until paid. Mrs. McDaniel, defendant, has appealed from that judgment. Plaintiff, by a cross point, complains of the refusal by the trial court to allow him pre-judgment interest from October 1, 1971 on the said sum of $9,613.76. The parties will be henceforth referred to as 'plaintiff' and 'defendant', as they were in the trial court.

Defendant first contends that the trial court erred in permitting plaintiff to recover $9,613.76 as damages based on plaintiff's trial amendment because such amendment states a cause of action which is barred by the two year statute of limitations (Vernon's Tex.Rev.Civ.Stat.Ann., Art. 5526 and Art. 5539b).

Plaintiff, in his original petition, alleged that defendant, by a written contract dated August 11, 1970, employed him to repair certain properties (that were damaged by Hurricane Celia on August 3, 1970) on a cost plus 10% Basis; that he performed under the contract; and that although defendant made some payments to him, there was still due him, under the contract, the sum of $11,143.29. In the alternative, he alleged that the labor done and the materials furnished defendant at her special instance and request were of the reasonable value of $11,143.29, and that the work done benefitted defendant and her properties in such amount. Plaintiff further alleged that he had theretofore made written demand of defendant for payment of the said sum of $11,143.29, but that she refused to pay any portion thereof. In addition to damages, plaintiff also prayed for interest on his damages, and for a reasonable attorney's fee.

Trial commenced on April 9, 1974. Thereafter, on April 11, 1974 and with leave of court first obtained, plaintiff filed a trial amendment, which read:

'The written contract referred to in his Original Petition was subsequent to the date thereof amended, changed and added to by verbal and oral contracts, agreements and understandings between Plaintiff and Defendant, particularly by way of adding additional properties and requiring Plaintiff not to accept any other contracting jobs and to devote his work and attention exclusively to Defendant's properties and that he be additionally and reasonably compensated therefor.'

Defendant did not claim surprise, did not seek a postponement of trial, did not withdraw her amendment of ready, and did not file any written answer to the trial amendment, but defended the action solely on an oral denial of the allegations contained in the trial amendment, and on the defenses set up in her original answer, which consisted of special exceptions (not involved in this appeal), a general denial, and pleas of offsets. In particular, defendant did not plead any statute of limitations as a defense to the action brought by plaintiff by way of the trial amendment.

It is well settled that a plea of limitation is an affirmative defense which must be pleaded specially in the trial court, or it is waived. Texas Rules of Civil Procedure, rule 94; Atkins v. Horne, 470 S.W.2d 229 (Tex.Civ.App.--Houston (14th Dist.) 1971, no writ); Naylor v. Gutteridge,430 S.W.2d 726, 734 (Tex.Civ.App.--Austin 1968, writ ref'd n.r.e.); 37 Tex.Jur.2d, Limitation of Action, § 193. The defense of limitations may not be urged for the first time on appeal from the judgment of a district court. Mergele v. Houston, 436 S.W.2d 951 (Tex.Civ.App.--San Antonio 1968, writ ref'd n.r.e.); Berdoll v. Berdoll, 145 S.W.2d 227 (Tex.Civ.App.--Austin 1940, writ dism'd). Not having plead the statute of limitations against the cause of action brought by plaintiff in his trial amendment, defendant waived limitations as a defense, and cannot now urge the same.

Defendant next contends that the trial court erred in awarding plaintiff $3,204.58 as attorneys' fees because there is no evidence 'to support presentment for collection of the debt', no 'jury finding of presentment as required by Art. 2226, V.A.C.S.', and no evidence to show 'reasonable attorneys' fees'. None of the contentions have any merit.

Plaintiff, in attempting to acquaint defendant with the amount of money allegedly due him, furnished a copy of his records relating to the work done under the contract, which showed the debits and credits for labor, materials and services furnished by plaintiff in performing his contractual obligations to defendant plus 10% Of the cost thereof. Defendant admitted that she received such records on May 10, 1972, which was more than 60 days before judgment was rendered. The records furnished defendant consist of 39 ledger sheets, are detailed, and contain entries beginning August 11, 1970 and ending September 13, 1971. A summary of the contents of the records concerning total debits, total credits, 10% Of the cost of the work and the amount due plaintiff under the contracts appears on the last page of the records. That summary shows a total sum of $11,143.29 to be due. The furnishing of those records on May 10, 1972 constituted a presentment of the claim.

The records, above mentioned, were introduced in evidence by plaintiff without objection by defendant. Plaintiff testified that shortly after defendant made the last payment to him in September, 1971, he made demand upon defendant for the balance due and owing to him under the contracts, and that he talked with her attorney in October, 1971 with reference to the money due him, and that he furnished her attorney copies of certain requested records. We hold that the evidence conclusively shows that plaintiff specifically presented his claim to defendant for payment more than 30 days prior to the time that judgment was rendered, and that the claim was not paid or satisfied within 30 days from the date it was first presented. It was not necessary to submit the matter of presentment of the claim to the jury. Furthermore, the record does not reveal that defendant requested in writing and tendered such an issue to the trial court, as required by Tex.R.Civ.P. 279. Therefore, defendant cannot now complain that the matter of presentment of the claim was not submitted to the jury for determination.

Counsel for both plaintiff and defendant made the following stipulation in open court:

'It is stipulated and agreed by and between plaintiff and the defendant and the attorneys for the plaintiff and the defendant that as to any attorneys' fees which are legally collectible in this case, that a reasonable, usual and customary fee for the services of plaintiff's attorney would be one-third of the amount of any recovery by plaintiff. . . .'

The amount of attorney's fees ($3,204.58) allowed plaintiff by the judgment is exactly one-third of the amount of damages ($9,613.76) recovered by him. The formula for calculating the amount of attorney's fees was agreed to by both parties in open court; therefore, no evidence as to whether such fees were reasonable was required to support the judgment. Attorney's fees are recoverable in this case under Tex.Rev.Civ.Stat.Ann. Art. 2226. Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.Sup.1962); Stafford v. Brennan, 498 S.W.2d 703 (Tex.Civ.App.--Corpus Christi 1973, no writ).

Moreover, defendant in her motion for new trial, made no complaint of the award of attorney's fees on the grounds asserted by her in this appeal. In that state of the record, she cannot assert those grounds for the first time in the appellate court. Tex.R.Civ.P. 320, 321, 322 and 334; Wager v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960).

Defendant also complains that the trial court erred in submitting Special Issue No. 2 to the jury, which inquired into the reasonable value of the service and labor personally done by plaintiff 'which a cost-plus contractor would usually and customarily pay others to render and do', because it assumes that plaintiff did render such labor and services, and that it was a comment upon the weight of the evidence in failing to employ the words 'if any'. These points are not properly before us.

The transcript in this case does not contain any written objections to the court's charge, and the court's ruling and official signature endorsed thereon. The complaints relating to the submission of Special Issue No. 2 cannot be considered; there was no compliance with Tex.R.Civ.P. 272. See Long v. Smith, 466 S.W.2d 32 (Tex.Civ.App.--Corpus Christi 1971, writ ref'd n.r.e.); City of Temple v. Thomas, 507 S.W.2d 858 (Tex.Civ.App.--Austin 1974, writ ref'd n.r.e.); Cody v. Mahone, 497 S.W.2d 382 (Tex.Civ.App.--San Antonio 1973, writ ref'd n.r.e.); Charter Oak Fire Insurance Company v. Perez, 446 S.W.2d 580 (Tex.Civ.App.--Houston (1st Dist.) 1969, writ ref'd n.r.e.).

Even if the points with respect to the submission of Special Issue No. 2 had been preserved for appellate review, they would have been overruled. The evidence was undisputed that plaintiff did render services and did perform labor which a cost-plus contractor would reasonably and customarily pay others to render and do. It is not error for the trial court, in charging the jury, to assume an...