Opinion
No. 04-06-00671-CV
Delivered and Filed: August 1, 2007.
Appeal from the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2003-CI-14938 Honorable Barbara Nellermoe, Judge Presiding.
AFFIRMED AS MODIFIED IN PART AND REVERSED AND RENDERED IN PART
Sitting: CATHERINE STONE, Justice KAREN ANGELINI, Justice SANDEE BRYAN MARION, Justice.
This case is before us on appellant's motion for rehearing. Because our first opinion erroneously decides the attorney's fees issue, we grant the motion for rehearing, withdraw our opinion and judgment dated June 6, 2007, and substitute the following in their place.
Appellees Inez Martinez, Sr. ("Inez Sr.") and San Juana Martinez brought suit against appellant Inez Martinez, Jr. ("Inez Jr.") and Rose Marie Martinez, seeking declaratory relief as well as damages for breach of contract, assault, conversion, breach of fiduciary duty, statutory fraud, trespass to real property, intentional infliction of emotional distress, invasion of privacy, and wrongful eviction. The record reflects that San Juana prevailed on her assault cause of action against Inez Jr. and was awarded actual and exemplary damages by the jury. Neither San Juana nor Inez Sr. prevailed on any other claim against Inez Jr. and Rose Marie. The trial court entered judgment following the jury's verdict and awarded San Juana $1,070 actual damages, $500 exemplary damages, $5,500 for attorney's fees, and $2,671.05 for her costs of court. Inez Jr. appeals the trial court's judgment, claiming the trial court erred by: (1) awarding attorney's fees incurred by San Juana because there is no legal basis for her recovery of attorney's fees; (2) denying his request for costs of court because he was a successful party as contemplated by Rule 131 of the Texas Rules of Civil Procedure; and (3) awarding San Juana her costs of court when she was not a successful party as contemplated by Rule 131 of the Texas Rules of Civil Procedure.
Attorney's Fees
Inez Jr. complains the trial court erred in awarding attorney's fees incurred by San Juana because there is no legal basis for her recovery of attorney's fees. The record reflects that the only claim on which San Juana prevailed against Inez Jr. was her assault cause of action. "Attorney's fees, however, are not recoverable on tort claims." Metro. Life Ins. Co. v. Haney, 987 S.W.2d 236, 243-44 (Tex.App.-Houston [14 Dist.] 1999, pet. denied). The trial court thus erred by awarding San Juana attorney's fees for her assault claim.
San Juana alleges that Inez Jr. failed to preserve his complaint regarding the award of attorney's fees. We disagree. Inez Jr. raised a complaint concerning the award of attorney's fees in his response to San Juana's motion for judgment on the verdict. Inez Jr.'s response to the motion for judgment on the verdict was timely and sufficiently specific to give the trial court an opportunity to resolve the legal issue of whether attorney's fees were recoverable under statute before rendering judgment. See Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999) (per curiam) (defendant' s response to motion for judgment on the verdict was sufficient to give the trial court an opportunity to resolve the legal issue of whether damages were available under statute). The trial court implicitly overruled Inez Jr.'s objection to the award of attorney's fees when it granted San Juana's motion for judgment on the verdict and entered judgment awarding San Juana attorney's fees. See Tex. R. App. P. 33.1(a)(2)(A). Accordingly, we hold Inez Jr. preserved his complaint for our review.
San Juana argues the trial court's award of attorney's fees is proper because she is authorized by statute to recover her attorney's fees. First, San Juana argues that when, as here, a litigant files suit seeking declaratory relief in accordance with Chapter 37 of the Texas Civil Practice and Remedies Code, the trial "court may award costs and reasonable and necessary attorney's fees as are equitable and just." See Tex. Civ. Prac. Rem. Code Ann. § 37.009 (Vernon 1997). Although trial courts may have discretion under Chapter 37 to award attorney's fees, see id., San Juana's argument ignores the fact that she abandoned her request for declaratory relief against Inez Jr. By abandoning her request for declaratory relief, San Juana forfeited her right to seek attorney's fees under Chapter 37 of the Civil Practice and Remedies Code. See id. (" In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just.") (emphasis added).
Second, San Juana argues she is entitled to recover attorney's fees under Chapter 38 of the Texas Civil Practice and Remedies Code since the underlying lawsuit raised claims concerning "an oral or written contract." See id. § 38.001 ("A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for: (1) rendered services; (2) performed labor; (3) furnished material; (4) freight or express overcharges; (5) lost or damaged freight or express; (6) killed or injured stock; (7) a sworn account; or (8) an oral or written contract."). However, "[t]o recover attorney's fees under Section 38.001, a party must (1) prevail on a cause of action for which attorney's fees are recoverable, and (2) recover damages." Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Here, San Juana did not prevail on her claim concerning the oral or written contract in question. Because San Juana did not prevail on her contract claim, Chapter 38 of the Civil Practice and Remedies Code provides no basis to support the trial court's award of attorney's fees. See id.
San Juana also argues the trial court's award of attorney's fees is proper because she is authorized to recover attorney's fees based on the provisions of a contract. See Norrell v. Aransas County Navigation Dist. No. 1, 1 S.W.3d 296, 303 (Tex.App.-Corpus Christi 1999, pet. dism'd) ("[P]arties to a contract may provide by agreement that the prevailing party is entitled to recover attorney's fees."). The record, however, is devoid of evidence of any agreement providing for the payment of attorney's fees. Thus, San Juana is not authorized to recover attorney's fees based on the provisions of a contract.
Finally, San Juana argues that the trial court's award of attorney's fees is proper because she is authorized to recover attorney's fees on equitable grounds. See Nationwide Mut. Ins. Co. v. Holmes, 842 S.W.2d 335, 341 (Tex.App.-San Antonio 1992, writ denied) (recognizing "recovery of attorney's fees based upon equitable principles . . . can exist."). To recover attorney's fees under equity, a plaintiff must establish her claim for attorney's fees is based on one of the following equitable grounds: (1) the common-fund doctrine, see generally In re Polybutylene Plumbing Litig., 23 S.W.3d 428, 438 (Tex.App.-Houston [1 Dist.] 2000, pet. dism'd) (noting that the common-fund doctrine allows trial courts, in the exercise of its equitable jurisdiction, to award reasonable attorneys' fees to a plaintiff who, at her own expense, has maintained a suit that creates a fund benefitting other parties as well as herself); or (2) attorney's fees as actual damages. See e.g. Lesikar v. Rappeport, 33 S.W.3d 282, 306 n. 1 (Tex.App.-Texarkana 2000, pet. denied) (recognizing "a plaintiff may recover attorneys' fees as damages where the defendant's wrongful conduct forces the plaintiff to prosecute or defend litigation in another proceeding."). Neither San Juana's pleadings nor any of the testimony elicited at trial demonstrates such equitable grounds apply in this case. Equitable principles thus do not provide a basis to support the trial court's award of attorney's fees to San Juana. Accordingly, we sustain Inez Jr.'s complaint concerning the trial court's award of attorney's fees to San Juana.
Inez Sr. and San Juana attempt to raise an appellate complaint concerning the trial court's failure to award them reasonable appellate attorney's fees as found by the jury. This issue is in reality a cross-point, which Inez Sr. and San Juana have failed to preserve for review because they did not file a notice of appeal. See City of San Antonio v. Hernandez, 53 S.W.3d 404, 407 (Tex.App.-San Antonio 2001, pet. denied).
Costs
As for Inez Jr.'s complaint that the trial court erred by denying his request for costs of court, such complaint must also be sustained. Inez Sr. brought nine separate claims against Inez Jr., and the jury resolved each of these claims in Inez Jr.'s favor. The jury's verdict thus vindicated Inez Jr. on all of the allegations asserted by Inez Sr., which makes Inez Jr. the successful party at trial as between Inez Jr. and Inez Sr. See Newsome v. Charter Bank Colonial, 940 S.W.2d 157, 168-69 (Tex.App.-Houston [14th Dist.] 1996, writ denied); Scholl v. Home Owners Warranty Corp., 810 S.W.2d 464, 469 (Tex.App.-San Antonio 1991, no writ).
The successful party to a suit is generally entitled to recover all legitimate costs he incurred. Tex. R. Civ. P. 131; see Scholl, 810 S.W.2d at 468. A court may, however, assess costs against the successful party, for good cause stated in the record. Tex. R. Civ. P. 141; see Scholl, 810 S.W.2d at 468. It is an abuse of discretion for a trial court to "`[allot] costs contrary to the provisions of rule 131, without including in the record an explanation of the allotment as required by rule 141.'" Scholl, 810 S.W.2d at 468. Here, the trial court did not state in the record its reasons for assessing costs as it did. In the absence of any explanation for its actions, the trial court abused its discretion by failing to award Inez Jr. his costs of court. We therefore sustain Inez Jr.'s complaint.
Inez Jr.'s final complaint alleges the trial court erred by awarding San Juana her costs of court because she prevailed on only one of her claims against him. We are unpersuaded by this argument because a plaintiff does not have to prevail on every claim against a defendant to be considered successful for purposes of recovering her costs of court. See Williamson v. Roberts, 52 S.W.3d 354, 356 (Tex.App.-Texarkana 2001), aff'd, 111 S.W.3d 113 (Tex. 2003) ("A plaintiff who prevails on one claim but not others in the same suit is a successful party."). The trial court therefore did not err by awarding San Juana her costs of court.
San Juana requested the trial court award her $3,474.85 for costs of court. The court, however, awarded San Juana only $2,671.05 for her costs of court, which was the same amount requested by Inez Jr. for his costs of court.
We note that Rose Marie has attempted to raise an appellate complaint concerning the trial court's failure to award her costs of court. The record reflects that Rose Marie did not file a notice of appeal in this case. The only notice of appeal in the record is the one filed on behalf of Inez Jr., which provides:
Now comes Defendant Inez H. Martinez, Jr. (hereinafter "Defendant"), by and through his undersigned attorney of record, and in accordance with the provisions of Tex. R. App. P. 25.1(d), appeals to the Fourth Court of Appeals for relief from [a] judgment rendered by the 45th Judicial District Court. Defendant specifically appeals the District Court's July 5, 2006 judgment granting attorney's fees and costs of court to Plaintiff San Juana Martinez.
As required by Tex. R. App. P. 25.1(d):
1. This is an appeal from a judgment by the 45 District Court in Bexar County, Texas. The case's trial court number and style are as follows: Inez Martinez, Sr. and San Juana Martinez v. Inez H. Martinez, Jr. and Rose Marie Martinez, Cause No. 2003-CI-14938.
2. Defendant appeals the July 5, 2006 judgment of the District Court.
3. Defendant Inez H. Martinez, Jr. desires to appeal this judgment.
4. This case is appealed to the Fourth Court of Appeals in Texas.
(emphasis added). Rule 25.1(c) of the Texas Rules of Appellate Procedure requires any party "who seeks to alter the trial court's judgment or other appealable order" to file a notice of appeal. Tex. R. App. P. 25.1(c). Rule 25.1(c) further states that when a party fails to file a notice of appeal, a showing of "just cause" is required before an appellate court may award more favorable relief than did the trial court. Id. Because Rose Marie failed to file a notice of appeal or show just cause for overlooking her failure to file a notice of appeal, we decline to address her complaint on appeal. See id.; see also Brown v. Johnson, No. 06-05-00015-CV, 2006 WL 1172412, *1 (Tex.App.-Texarkana 2006, no pet.) (mem. op.).
Conclusion
Based on the foregoing, we reverse the trial court's award of attorney's fees and render judgment that San Juana recover no attorney's fees from Inez Jr. We modify the trial court's judgment to award Inez Jr. his costs of court. The remainder of the trial court's judgment, as modified, is affirmed.