Wohlfahrt v. Holloway

• Citation: 172 S.W.3d 630
• Decision Date: 18 August 2005
• Docket Number: No. 14-03-01084-CV.,No. 14-03-01130-CV.,14-03-01084-CV.,14-03-01130-CV.
• Parties: Douglas WOHLFAHRT, M.D. and Lynn Wohlfahrt, Appellants, v. John H. HOLLOWAY, Appellee. John H. Holloway, Appellant, v. Douglas Wohlfahrt, M.D. and Lynn Wohlfahrt, Appellees.
• Court: Supreme Court of Texas

Page 630

172 S.W.3d 630

Douglas WOHLFAHRT, M.D. and Lynn Wohlfahrt, Appellants, v. John H. HOLLOWAY, Appellee.

John H. Holloway, Appellant, v. Douglas Wohlfahrt, M.D. and Lynn Wohlfahrt, Appellees.

No. 14-03-01084-CV.

No. 14-03-01130-CV.

Court of Appeals of Texas, Houston (14th Dist.).

June 2, 2005.

Rehearing Overruled August 18, 2005.

COPYRIGHT MATERIAL OMITTED

Levon G. Hovnatanian, Raul Herman Suazo, Kevin Graham Cain, Houston, for appellants.

John Howard Holloway, Houston, pro se.

Panel consists of Chief Justice HEDGES and Justices FOWLER and EDELMAN.

OPINION

ADELE HEDGES, Chief Justice.

Douglas Wohlfahrt, M.D. and Lynn Wohlfahrt appeal from the trial court's judgments favoring John Holloway on Holloway's quantum meruit and debt causes of action and the Wohlfahrts' Deceptive Trade Practices Act counterclaims. In three issues, the Wohlfahrts contend that the trial court erred in (1) granting judgment on the quantum meruit claim, (2) disregarding the jury's DTPA violation findings, and (3) calculating interest on the debt claims. Holloway brings a separate appeal from the taxation of costs in an earlier appeal in this case. We reverse and render on Holloway's quantum meruit cause of action, reverse and remand on the Wohlfahrts' DTPA causes of action, affirm on Holloway's debt causes of action, and dismiss Holloway's appeal regarding the taxation of appellate costs.

I. Background

There is considerable dispute in the record and on appeal regarding the nature of the relationship between Holloway and the Wohlfahrts. Holloway is an attorney specializing in medical malpractice cases. Douglas Wohlfahrt is a medical doctor. It is uncontroverted that Holloway handled various legal matters for the Wohlfahrts between 1983 and 1992. It is also uncontroverted that during this time Dr. Wohlfahrt reviewed medical files for Holloway related to Holloway's legal practice, although the number and value of such reviews was hotly contested.

The Wohlfahrts testified that they had a bartering arrangement with Holloway, under which Holloway exchanged his legal services for Dr. Wohlfahrt's review of files. Holloway testified that there was no such arrangement and that the Wohlfahrts owed him for his legal services.

It is further undisputed that for certain of his services Holloway billed the Wohlfahrts and the Wohlfahrts paid him, but for other services, Holloway did not bill (until March 1992 when suit was filed) and the Wohlfahrts did not pay. Holloway filed the present lawsuit seeking recovery of his fees for services rendered over the years and for recovery of a loan he made to the Wohlfahrts. The Wohlfahrts counterclaimed alleging DTPA violations, among other things.

This is the second appeal in this lawsuit. After the first trial, the trial court ruled that the Wohlfahrts' DTPA counterclaims were barred by either section 16.069 of the Civil Practice and Remedies Code, which requires counterclaims to be filed within 30 days of the date the answer is due, or the two-year statute of limitations for DTPA claims. TEX. BUS. & COM.CODE ANN. § 17.565 (Vernon 2002); TEX. CIV. PRAC. & REM.CODE ANN. § 16.069 (Vernon 1997). On appeal, the First Court of Appeals reversed, holding that the counterclaims were not barred. Wohlfahrt v. Holloway, No. 01-99-00205-CV, 2001 WL 84212 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (not designated for publication). The First Court awarded appellate costs against Holloway but remanded to the trial court for a determination of the costs for two portions of the reporter's record.

In the second trial, the jury received a voluminous charge that included 32 separately numbered questions, requiring as many as 161 separate answers.¹ In the parts relevant to this appeal, the jury found that (1) there was no bartering agreement between the parties; (2) there was no attorney-client agreement between the parties; (3) Holloway loaned money to the Wohlfahrts, and the Wohlfahrts paid some of it back; (4) Holloway knowingly engaged in a false, misleading, or deceptive act or practice that caused damages to the Wohlfahrts; and (5) Holloway knowingly engaged in an unconscionable action or course of action that caused damages to the Wohlfahrts. The jury also provided amounts for the "reasonable attorney's fee[s]" for the services rendered by Holloway for the Wohlfahrts, for the "reasonable value" of Dr. Wohlfahrt's review of medical files for Holloway, and for the "necessary services" of the Wohlfahrts' attorneys in the present lawsuit.

Post—verdict, the trial court ruled that (1) Holloway was entitled to judgment on his pled quantum meruit claim for the services he provided to the Wohlfahrts; (2) Holloway was entitled to judgment on his debt claims; and (3) the Wohlfahrts' counterclaims, including the DTPA claims, were time-barred. The court entered judgment accordingly, awarding Holloway $99,776 plus pre— and post—judgment interest on the fees and $16,162.22 plus pre— and post—judgment interest on the debt.

On appeal, Holloway initially contends that the Wohlfahrts waived their appeal by failing to file a proper notice of appeal. The Wohlfahrts contend that the trial court erred in granting judgment on the quantum meruit claim, disregarding the jury's DTPA violation findings, and calculating interest on the debt claim. Holloway also complains of the taxation of costs in the earlier appeal.

II. Notice of Appeal

Holloway initially argues that the Wohlfahrts' appeal should be dismissed because they failed to provide a proper notice of appeal. The trial court signed a number of final judgments in the case below. Some of the judgments superceded earlier judgments. Holloway asserts that the Wohlfahrts' notice of appeal was invalid because it was taken from earlier, superseded judgments and was not amended to indicate the correct final judgments.² However, the Texas Rules of Appellate Procedure make it clear that the Wohlfahrts were not required to file a new notice of appeal when the trial court signed new final judgments. Under Rule 25.1(a), an appeal is perfected when a notice of appeal is filed with the trial court clerk. Tex.R.App. P. 25.1(a). Further, Rule 27.3 states that

After an order or judgment in a civil case has been appealed, if the trial court modifies the order or judgment, or if the trial court vacates the order or judgment and replaces it with another appealable order or judgment, the appellate court must treat the appeal as from the subsequent order or judgment and may treat actions relating to the appeal of the first order or judgment as relating to the appeal of the subsequent order or judgment.

TEX.R.APP. P. 27.3. Thus, by operation of Rules 25.1 and 27.3, the Wohlfahrts provided a proper notice of appeal. Consequently, Holloway's argument is without merit.

III. Quantum Meruit

A. The Charge

The Wohlfahrts first contend that the trial court erred in rendering judgment for Holloway on his quantum meruit claim. The parties initially dispute whether the quantum meruit claim was submitted to the jury. See TEX.R. CIV. P. 279 (providing that all independent grounds of recovery not submitted or requested in the charge are waived unless conclusively proven). We find that it was not.

Quantum meruit is an equitable remedy based upon an implied promise to pay for benefits received. Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992). Myrex Indus., Inc. v. Ortolon 126 S.W.3d 548, 550 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). In order to prove quantum meruit, a party must show that (1) valuable services were rendered or materials furnished; (2) for the person sought to be charged; (3) which services and materials were accepted by the person sought to be charged and used and enjoyed by him; (4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged. Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex.1990); Clear Lake City Water Auth. v. Kirby Lake Dev., Ltd., 123 S.W.3d 735, 753 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).

Holloway maintains that the claim was submitted in Question Two "A," which asked: "What do you find to be a reasonable attorney's fee for the necessary services rendered by John H. Holloway in handling each of the following legal matters, stated in dollars and cents?" Question Two "A" also included an instruction that

[i]n determining what is a "reasonable attorney's fee" for legal services and time expended by an attorney for the use and benefit of a client in legal matters, you are instructed that you should consider the following factors in deciding the "reasonableness" of the amount of attorney's fees to be awarded. . . .

The instruction then listed the factors required by the Texas Supreme Court to be submitted for the jury's consideration when awarding attorney's fees. Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex.1997); see also COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES—BUSINESS, CONSUMER, INSURANCE & EMPLOYMENT PJC 110.43 cmt. (2003). Lastly, the question listed forty—four items or legal matters, and after each, the jury placed a dollar figure.

There are three reasons why this question should not be read as presenting a quantum meruit claim: (1) it does not include the required elements, (2) its placement in the charge suggests that it is part of a breach of contract submission, and (3) at trial, Holloway denied that he was seeking recovery under a quantum meruit theory. We shall discuss each in turn.

First, Question Two "A" does not include all of the required elements for quantum meruit; indeed, it does not appear to include any of the required elements in proper form. See Vortt Exploration, 787 S.W.2d at 944; Clear Lake City Water Auth., 123 S.W.3d at 753; PJC 101.42. Holloway argues that the court's...