Opinion
No. 04-03-00575-CV
Delivered and Filed: September 22, 2004.
Appeal from the County Court at Law No. 2, Webb County, Texas, Trial Court No. 2002-Cvf-0001159-C3, Honorable Jesus Garza, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice (concurring in the judgment only)
MEMORANDUM OPINION
According to Linda Frank's trial testimony, she purchased some furniture from Elsa Valdez on August 12 and August 14, 1999 and gave in exchange two checks, one for $11,000 and the other for $5,900. However, Frank did not take the furniture with her because she had to sell the furniture she had to make room for the new. After Frank returned home, she realized that she "would practically have to give away [her] furniture to get rid of it." As a result, approximately one month after she had purchased the new furniture, she returned to Valdez's shop and asked if Valdez would sell the new furniture for her. Valdez agreed. Ultimately, Valdez sold Frank's furniture but did not remit the proceeds to Frank. Accordingly, Frank filed a breach of contract suit against Valdez. After a brief bench trial, at which Frank and Valdez testified, the trial court rendered judgment in Frank's favor for $12,000 and $1,500 in attorney's fees. Valdez appeals.
1. In her first issue, Valdez contends the trial court reversibly erred by failing to file findings of fact and conclusions of law. We disagree. The failure to file findings of fact and conclusions of law is harmless error unless the appealing party has to guess at which particular theory of recovery the court relied upon in rendering judgment. See Sheldon Pollack Corp. v. Pioneer Concrete, 765 S.W.2d 843-845 (Tex.App.-Dallas 1989, writ denied). Here, the trial court left no doubt that it rendered judgment against Valdez on Frank's breach of contract claim both at trial and in its judgment.
At the conclusion of the trial, the trial judge stated:
At this time after hearing the evidence, the Court finds that Statute of Fraud does not apply in this case. Further, the Court finds that Laches does not apply as well. The issue of Conversion does not apply. The only issue before the Court is one of Breach of Contract. Based on the evidence the Court brings a judgment after offsets have been made to the defendant, the Court brings judgment for the amount of $12,000. Attorney's fees will be set at $1,500.00. That is all.
The judgment states: "Elsa Valdez breached the verbal contract entered into between the parties and damaged Plaintiff as a proximate result thereof."
2. Valdez next argues that "[b]ecause the alleged `agreement' is so vague and is lacking in consideration, meeting of the minds and adequate proof of damages, the judgment should be reversed and take nothing judgment should be entered for Appellant." We again disagree. Frank's testimony establishes the consideration for the agreement: Frank promised to leave her new furniture in Valdez's shop in exchange for Valdez's promise to try to sell it. See, e.g., Texas Gas Util. Co. v. Barrett, 460 S.W.2d 409, 412 (Tex. 1970) ("where no other consideration is shown, mutual obligations by the parties to the agreement will furnish a sufficient consideration to constitute a binding contract"). And, while the agreement is certainly lacking in detail, it is not so vague that Valdez failed to appreciate that she was obliged to sell the furniture and remit the proceeds to Frank. Indeed, according to Frank's trial testimony, Valdez offered to begin paying Frank $2000 a month, beginning in January, until the obligation was satisfied.
3. Finally, Valdez argues the trial court abused its discretion in awarding $1500 in attorney's fees, because "no express contract was proven at trial, the claim presented for payment was excessive, and there was no evidence or insufficient evidence at trial with respect to reasonableness, to justify an award of attorney's fees." We again disagree. As discussed above, Frank's testimony establishes a contract, which authorizes an award of attorney's fees. See Tex. Civ. Prac. Rem. Code Ann. § 38.001 (Vernon 2004). If the party seeking to recover attorney's fees under section 38.001 establishes that she presented her claim to the opposing party and that payment was not made within thirty days of presentment, the trial court must award the prevailing party her attorney's fees. See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). Determining what constitutes a reasonable attorney's fee is a question of fact; but clear, direct, and uncontroverted evidence of attorney's fees is taken as true as a matter of law, especially when the opposing party does not rebut the evidence. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881-82 (Tex. 1990). The uncontroverted testimony in this case establishes that Frank agreed to pay her attorney a flat rate of $3000 to prosecute her claim against Valdez; and the trial court awarded one-half that amount — $1500 or 12½% of the $12,000 in actual damages awarded after the offset. We decline to hold that the trial court abused its discretion in awarding attorney's fees of 12½% of actual damages on the record in this case, particularly in light of Valdez's failure to offer controverting proof.
The trial court's judgment is affirmed.