Summary
holding in memorandum opinion that trial court did not err in awarding no attorney's fees under Chapter 38 of the Texas Civil Practice and Remedies Code because evidence that plaintiff could have settled the case before filing suit for the amount recovered indicated that fees were not necessary
Summary of this case from Middleton v. National FamilyOpinion
No. 05-03-00247-CV.
Opinion Filed February 10, 2004.
On Appeal from the County Court at Law No. 5, Dallas County, Texas Trial Court Cause No. CC-00-11252-E.
Reversed and Rendered in part; Remanded in part.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
In this breach of contract dispute, Ameritech Services, Inc. appeals the trial court's judgment in favor of SCA Promotions, Inc. In seven issues, Ameritech generally complains about the jury's answers to liability and attorney's fees questions. Because we conclude the award of $189,425 in attorneys fees to SCA is supported only by nominal damages, we reverse and render judgment that SCA recover no attorney's fees. We conclude the remaining findings challenged on appeal are supported by the evidence.
In 1998, Ameritech launched the C2 campaign, which offered consumers a forty-minute, pre-paid calling card if they purchased various services, such as caller ID. Ameritech contracted with SCA to limit its exposure if too many cards were given away or too many minutes were used. In particular, the over-redemption contract provided protection if Ameritech distributed more than 400,000 pre-paid phone cards. In such an event, SCA was to pay Ameritech $4.18 per card over 400,000. A second contract, the over-use agreement, provided coverage to Ameritech if the total phone time usage on each card distributed exceeded 60 percent, or twenty-four minutes per card. Both contracts required SCA to purchase insurance from American International Group Co., or AIG.
Ultimately, Ameritech claimed it distributed more than 400,000 cards and sought reimbursement from SCA. SCA disputed the claim but offered to resolve the dispute for $50,000. Ameritech rejected the offer and sued SCA for failing to pay the over-redemption amount and failing to purchase insurance from AIG. SCA counterclaimed, alleging among other things, that Ameritech breached the over-use agreement by failing to pay twenty-seven cents per card over 200,000 (Ameritech paid on the first 200,000 cards distributed).
Following a four-day trial, the jury found SCA failed to comply with the over-redemption agreement and awarded $9062 in damages to Ameritech for failure to pay for over-redemption but awarded zero for attorney's fees. The jury also found SCA did not commit a material breach of the over-redemption and over-use agreements by failing to purchase insurance. With respect to SCA's claims against Ameritech, the jury found Ameritech failed to comply with the over-use agreement, the failure to comply was not excused, and awarded $1 in damages to SCA. The jury also awarded SCA $189, 425 in attorney's fees for preparation and trial of the case.
In the judgment, the trial court offset the $9062 in damages awarded to Ameritech, ordering that SCA recover from Ameritech $180,364 ($189,426-$9062) and Ameritech take nothing on its claims. Ameritech appealed.
In issue A, Ameritech complains there is no evidence, or alternatively insufficient evidence, to support a finding that it breached the over-use contract. In particular, Ameritech complains there is no evidence or insufficient evidence that SCA fulfilled its obligations under the contract, Ameritech failed to pay sums due and owing under the contract, and SCA was damaged by Ameritech's breach.
To preserve a no-evidence complaint on appeal, Ameritech must have specifically raised its complaint in a manner sufficient to call the trial court's attention to the issue by (1) motion for instructed verdict, (2) motion for judgment notwithstanding the verdict, (3) an objection to the submission of the issue to the jury, (4) a motion to disregard the jury's answer to a vital fact issue or (5) motion for new trial. See Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991). A complaint that the evidence is factually insufficient to support a jury finding must be preserved in a motion for new trial. Tex. R. Civ. P. 324(b)(2), (3). Here, Ameritech moved for a directed verdict and filed both a motion for J.N.O.V. and motion for new trial. Ameritech did not raise the issue of no evidence to support SCA's breach of the over-use agreement. We conclude Ameritech has failed to preserve its no-evidence complaint.
With respect to its factual sufficiency complaint, Ameritech raised several specific complaints in its sixteen-page motion for new trial but only generally argued in a single sentence that "there is insufficient evidence to support the jury's verdict on Counter-Plaintiff's claims." Ameritech did not raise the specific complaints raised on appeal. Under these circumstances, we conclude Ameritech's factual sufficiency complaint was not properly preserved and cannot be considered by this Court. See Ramey v. Collagen Corp., 821 S.W.2d 208, 210-11 (Tex. App.-Houston [14th Dist.] 1991, writ denied).
Even if we assumed Ameritech had preserved its no-evidence and insufficiency complaints, it has failed to adequately brief the issues. Texas Rule of Appellate Procedure 38 provides that a brief to this Court shall contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contention made with appropriate citations to authorities and the record. Tex.R.App.P. 38.1.
Ameritech asserts there is "no evidence" on three of the four elements of SCA's breach of contract case, yet cites just two cases, both for the basic elements of breach of contract. Ameritech makes no attempt to analyze the law with respect to the specific elements it challenges. For example, Ameritech argues in its brief there is no evidence SCA performed its obligations under the over-use agreement. Ameritech asserts SCA did not fully perform because SCA breached the agreement by failing to acquire the insurance from AIG. In making its argument, Ameritech does not address the fact that the jury was specifically asked whether SCA materially breached the over-use agreement by failing to obtain the insurance and answered "No." Ameritech has made no attempt to discuss this finding or how the law regarding material breach affects this issue. It is not this Court's responsibility to flesh out Ameritech's arguments. Because Ameritech has failed to provide appropriate citations to legal authorities and failed to adequately analyze the legal issues it has raised, we conclude the issue is inadequately briefed. Issue A is without merit.
In issue B, Ameritech complains that it prevailed on its breach of contract claim yet the jury failed to award its attorney's fees. Specifically, Ameritech asserts the jury's award of zero dollars as reasonable and necessary attorney's fees is against the great weight and preponderance of the evidence. It argues that attorney's fees are mandatory under Texas Civil Practice and Remedies Code section 38.001 and that it conclusively established attorney's fees in the amount of $72,500.
A zero award of attorney's fees is proper if the evidence failed to prove that any attorney's services were provided or the value of the services provided; or affirmatively showed that no attorney's services were needed or that the services provided were of no value. Cale's Clean Scene Carwash, Inc. v. Hubbard, 76 S.W.3d 784, 787 (Tex. App.-Houston [14th Dist.] 2002, no pet.).
Evidence was presented that in January 1999, before Ameritech filed this lawsuit, SCA offered to resolve the matter for $50,000 — more than five times the amount awarded by the jury — and to forego any right it had to additional money from Ameritech. Ameritech refused, filing suit first in federal court in Illinois and then county court at law in Texas. From this evidence, the jury could have believed the litigation was unnecessary and that legal services were not needed. We resolve issue B against Ameritech.
In issue D, Ameritech complains about the jury's award of $189,425 in attorney's fees to SCA. Ameritech argues (1) there is no evidence showing SCA properly presented its contract claim, (2) there is no evidence Ameritech failed to pay the just amount owed within thirty days of presentment, (3) the jury's verdict of $1 is an award of nominal damages, which cannot support an award of attorney's fees, (4) SCA failed to segregate its attorney's fees, and (5) SCA is not a prevailing party. We agree with Ameritech's argument that the $1 award is nominal damages that cannot support the attorney's fees.
A party must satisfy two requirements to obtain an award of attorney's fees. Rodgers v. RAB Investments, Ltd., 816 S.W.2d 543, 551 (Tex. App.-Dallas 1991, no writ). First, a party must prevail on a cause of action for which attorney's fees are recoverable. Id. Second, the party must recover damages. Id. There "must be a recovery of money, or at least something of value; otherwise the attorney's fee award cannot be described as an `addition' to the claimant's relief." Id.
Nominal damages are damages in name only. Lucas v. Morrison, 286 S.W.2d 190, 191 (Tex.Civ.App.-San Antonio 1956, no writ). They are some trivial amount. Id. They are given, not as an equivalent for the wrong, but to recognize a technical right. Van de Putte v. Cameron County Water Control Improvement Dist. No. 7, 35 S.W.2d 471, 474 (Tex.Civ.App.-San Antonio 1931, no writ). Nominal damages, traditionally the sum of $1 or $10, are not the type of "valid" claim contemplated by the Legislature which will entitle a litigant to the "additional" relief of attorney's fees under section 38.001. ITT Commercial Fin. Corp. v. Riehn, 796 S.W.2d 248, 257 (Tex. App.-Dallas 1990, no writ).
The jury found Ameritech failed to comply with the terms of the over-use agreement but awarded only $1 in damages in the face of SCA's request for more than $33,000. The $1 is only a "trivial amount" intended to send a message that SCA was "technically right" in this case. Because we conclude the $1 awarded by the jury was nominal damages, it cannot support an award of attorney's fees. See Riehn, 796 S.W.2d at 257; see also Harkins v. Crew, 907 S.W.2d 51, 61 (Tex. App.-San Antonio 1995, writ denied) (concluding jury's award of $1 for emotional distress was "nominal" damages and could not support punitive damage award). We resolve issue D against Ameritech.
In light of our disposition of the issues A, B, and D, we need not decide the remaining issues. See Tex.R.App.P. 47.1. We reverse the $189,425 attorney's fee awarded to SCA and render judgment that (1) SCA take nothing on its attorney's fee claim, (2) Ameritech recover $9062 in damages, and (3) SCA recover $1 in damages. We remand this case to the trial court for calculation of pre- and post-judgment interest, if any, on these damages and for entry of judgment in accordance with this Court's opinion.