Stevens v. Avent

• Decision Date: 15 March 2022
• Docket Number: 07-20-00265-CV
• Court: Texas Court of Appeals
• Parties: PAT STEVENS AND CHERYL STEVENS, APPELLANTS v. JON AVENT, APPELLEE

PAT STEVENS AND CHERYL STEVENS, APPELLANTS
v.
JON AVENT, APPELLEE

No. 07-20-00265-CV

Court of Appeals of Texas, Seventh District, Amarillo

March 15, 2022

On Appeal from the 72nd District Court Lubbock County, Texas Trial Court No. 2018-533, 023; Honorable Ruben G. Reyes, Presiding

Before QUINN, C.J., and PIRTLE and DOSS, JJ.

MEMORANDUM OPINION ON MOTION FOR REHEARING

Patrick A. Pirtle Justice

Appellants, Pat Stevens and Cheryl Stevens, appealed the trial court's judgment awarding Appellee, Jon Avent, $41, 423.23 in economic damages and $15, 275.00 in attorney's fees in his suit for breach of contract. By Memorandum Opinion dated

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February 9, 2022, this court affirmed that judgment.^[1] The Stevenses timely filed a Motion for Rehearing, re-urging their third issue, on the basis that our original opinion failed to adequately address whether the evidence presented was legally sufficient to support the finding that Avent presented his claim for purposes of determining whether he was entitled to recover his attorney's fees. The Stevenses maintain that rehearing should be granted because this court's prior opinion analyzed pleading sufficiency and not evidentiary sufficiency. Remaining convinced that our prior opinion reached the proper conclusion, we write now to address the issues raised by the Stevenses' Motion for Rehearing. The Motion for Rehearing is denied.

Applicable Law

In a breach of contract suit, in addition to the amount of a valid claim, a prevailing party may recover the amount of reasonable and necessary attorney's fees incurred in the prosecution of that claim. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8). In order to recover attorney's fees, the claimant must (1) be represented by an attorney, (2) have presented the claim to the opposing party or to a duly authorized agent of the opposing party, and (3) payment for the just amount owed must not have been tendered before the expiration of the thirtieth day after the claim was presented. Id. at § 38.002. As such, presentment is a condition precedent to the recovery of attorney's fees under section 38.001.

The purpose of presentment is to allow the person against whom the claim is being asserted an opportunity to pay the claim within thirty days of receiving notice of that claim

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without incurring an obligation for attorney's fees. See Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981). There is no prescribed form for presentment; all that is necessary is that the claimant assert a valid debt or claim, a request for payment, and the opposing party's failure to pay within thirty days. Id.

At trial it is the claimant's burden to plead and prove presentment of a claim and failure of performance. Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983) (op. on reh'g). "But when a claimant avers in its petition that all...